Extended absence from work on sick leave can create odd situations, such as the accumulation of holiday entitlement. Most employers know that employees on maternity leave continue to accrue holiday entitlement and this is often added at the end of the maternity leave period.
In this month’s Employment Appeal Tribunal decision in the case of Plumb v Duncan Print Group the question was whether Mr Plumb, who had been off work for nearly four years, could claim all his accumulated holiday entitlement.
Mr Plumb was employed as a printer. He had an accident on 26 April 2010. He remained on sick leave until his employment was terminated on 10 February 2014. According to the terms of his employment his leave years ran from 1 February to 31 January. He was refused a request for holiday leave from 5 August 2013. When his employment was terminated he claimed holiday pay for 2010, 2011 and 2012. His request was refused in the basis that he could not demonstrate that he was unable, by reason of his medical condition, to take annual leave within the leave years.
Regular readers are aware that European law has dictated that holiday pay can accrue during sickness absence but there should be a cut off point. I wrote about this in the blog in 2011.
The employment tribunal took the view that Mr Plumb could not demonstrate that he was unable, by reason of his medical condition, to take annual leave while he was on sick leave and therefore dismissed his claim. That was not the basis on which the European decisions had excluded claims because they were based on the need for a cut off point.
The tribunal’s approach was wrong:
Article 7 of the Directive requires that an employee who is on sick leave, and who would be permitted to take paid annual leave during that sick leave, is not required to take annual leave but may choose to do so. Where, as in this case, the Appellant did not wish to take annual leave during periods of sick leave, he was entitled to take the annual leave at a later date. Regulation 13(9) of the Regulations, which provided that annual leave may only be taken in the leave year in respect of which it was due, would need to be interpreted accordingly in order to give effect to the Directive. Regulation 13(9) of the Regulations, however, had only to be interpreted to the extent necessary to give effect to the Directive. EU law did not confer an unlimited right to carry over periods of annual leave to subsequent years. The Directive, at most, only required that employees on sick leave were able to take annual leave within a period of 18 months of the end of the leave year in respect of which the annual leave arose. Consequently, Regulation 13(9) of the Regulations was to be read as permitting a worker to take annual leave within 18 months of the end of the leave year in which it was accrued where the worker was unable or unwilling to take annual leave because he was on sick leave and, as a consequence, did not exercise his right to annual leave.