Holiday pay and sickness absence – the story continues
The issue of holiday pay and sickness absence continues to be taken before the courts and tribunals and as each case is heard, we begin to see greater clarity on the situation.
In the case of Plumb v Duncan Print Group Ltd, the EAT has clarified two issues affecting the rights of workers on long term sick leave to carry forward untaken annual leave under the Working Time Regulations 1998.
This case came about when the Claimant sought to claim a payment in lieu of untaken holiday when his employment ended after a long period of sickness absence. The employer’s leave period ran from 1 February to 31 January each year. The Claimant in this case was absent on sick leave from 26 April 2010 until his employment ended on 10 February 2014. During the whole of that time he did not take any annual leave.
The EAT ruled that the Claimant was entitled to a payment in lieu of his untaken holiday for all years except the 2010/11 and 2011/12 leave years.
How does this affect employers?
There are two interesting points from this case:
• Following on from this case, a worker on sick leave can carry forward untaken holiday entitlement even if he is capable of taking that leave but simply unwilling to take it.
• Untaken leave cannot be carried forward indefinitely and the Working Time Regulations are to be read as allowing a worker to take annual leave within 18 months of the end of the leave year in which it accrued.
What we can do for you
The imposition of an 18 month limit is useful guidance for employers. However, holiday entitlement and its interaction with commission, sickness absence, maternity leave and overtime continues to cause employers and employees headaches. We can help you with these difficult problems.