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Is an employee entitled to carry over holiday whilst on sick leave?

Yes, but only for 18 months advises Employment Lawyer, Paula Stuart, following the recent Employment Appeal Tribunal (EAT) decision in Plumb v Duncan Print Group Limited

The facts of this case are that Mr Plumb had an accident at work in 2010 and was off sick until his employment was terminated in 2014. Mr Plumb claimed payment for holiday accrued since 2010. The Employment Tribunal dismissed the claim on the grounds that Mr Plumb could have taken holiday whilst on sick leave and was not prevented from doing so by his medical condition.

On appeal the EAT disagreed with the Employment Tribunal regarding the decision on holiday entitlement when off sick. It held that an employee is not required to show he was unable by reason of sickness to take holiday. They found that an employee who is either unable or unwilling to take holiday during sickness absence is entitled to take it at a later date.

However, the EAT did rule that there was a limit on the amount of holiday that could be carried over and that it may be limited to 18 months from the end of the leave year. Therefore, the EAT held that Mr Plumb was entitled to payment in lieu of holiday for 2012 but not for 2010 and 2011.

Watch this space as this may not be the end of the matter – permission to appeal to the Court of Appeal was granted to both parties

It is important to note that the entitlement to carry over holiday only applies to the four weeks’ basic leave granted by Regulation 13 of the Working Time Regulations 1998. It does not apply to the 8 days additional leave granted under Regulation 13A or any additional contractual entitlement unless this is provided for in the contract. An earlier EAT decision in Sood Enterprises v Healy held that the additional leave is not eligible for carry forward.

Paula Stuart says that ‘This case serves as a reminder of how important it is for an employer to keep long term absence under regular review. It is also worth reviewing the contract of employment to ensure an employee is deemed to take their basic leave entitlement before the additional leave. This may help reduce the liability.’

If you require any advice on any handling annual leave and sickness, or any other employment matter, please contact Paula Stuart at pstuart@geoffreyleaver.com or on 01908 689345.