Long Term Sickness Absence: how long will unused annual leave carry over?
Posted on 10th July 2015 at 10:50
The quick answer, following a recent Employment Appeal Tribunal decision, is 18 months from the end of the leave year in which it is accrued. As ever, a quick answer only invites slow analysis, so let’s look a little closer.
In practice, we are talking about the right of an employee returning from long term sickness absence, or dismissed before returning, to seek holiday pay arrears reflecting annual leave not taken during the sickness absence period. It may be fair to conclude that few employees on long term sick leave would think to pick up the phone to HR and book two weeks’ holiday, even if this would bring them two weeks’ worth of holiday pay rather than SSP.
So the law steps in and protects the accumulated right to annual leave, should the employee become aware of his rights and decide to take the point. But how far does the principle extend?
Mr Plumb, the claimant in Plumb v Duncan Print Group (EAT judgment handed down on 8 July 2015), argued that his entitlement was open ended, because neither his employment contract nor UK law dictated to the contrary. Having been off sick for almost 4 years, he claimed holiday pay for his 2010 to 2012 leave years after his employment terminated in February 2014. The employer refused. What did the EAT decide?
After a careful analysis of EU regulations and directives, they concluded that the proper period of carry over was 18 months from the end of the leave year in which it was accrued. So Mr Plumb won his holiday pay arrears for 2012, but not for any earlier year.
There is another point for employers to note here, over and above the desirability of letting sleeping dogs lie generally in situations of this kind. There will be no scope for an employer to argue that an employee must demonstrate that he was too ill to take holiday in order to benefit from carry over. “Use it or lose it” has no legal force in situations of this kind.
The decision might still leave employers thinking that the principle of annual leave accruing during long term sickness absence is absurd – “what would they be taking a holiday from? Not from work…” Well, that’s the law. We lawyers will gladly advise on how it affects employers’ business interests when we’re asked to do so. Objections are better directed towards politicians.
Tagged as: Solicitor
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