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Are Employers Sick of Holiday Queries?

View profile for Theresa Carling
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Ah holidays. The smell of suntan lotion. Drinking early in the day and returning considerably heavier than when you left Blighty. All well and good and exactly what we expect from our escape to two weeks in the sunshine.

But think of poor employers! Since the Working Time Regulations came in, along with mandatory 20 days of leave for all workers under the European Working Time Directive, there have been a number of niggly issues for them to deal with, including whether employees on sick leave are entitled to holiday (yes they are, as has been settled for some time). But how far back should those payments for accrued holiday go and should the worker have to prove that they were too ill at the time to have taken holiday in order for them to be able to claim that leave? Employers often have sick employees on their books for lengthy periods of time, often months or even years at a time. This could be due to an oversight, the philanthropic nature of some employers, or a lack of understanding about what they are entitled to do in such a situation.

The question considered in a recent case was whether employees on sick leave have to show that they were unable to take holiday because of their illness in order to carry it forward. There was concern that the right to carry over holiday could be unlimited, meaning employers were forced to try and find years worth of arrears.

Thanks to the recent EAT decision in Plumb v Duncan Print Group Limited, there is now some useful guidance for employers faced with this situation. In that case, Mr Plumb, who was a printer, was on sick leave for four years following an accident. When he was dismissed, he looked for sixty days of accrued holidays under the Working Time Regulations for 2010 to 2012.  At the initial Employment Tribunal, his claim was dismissed as he was unable to show that his medical condition was the reason he did not take his leave during those years. The EAT overturned that finding. Applying the UK legislation in accordance with Article 7 of the Working Time Directive, they found that the four weeks of Working Time Directive leave (ie 20 days a year) could be taken at a later date.

However, the EAT ruled that such leave cannot be carried forward indefinitely and this may be limited to eighteen months carried forward from the end of the leave year, following the Schulte decision. Accordingly, Mr Plumb was entitled to pay in lieu of annual leave for 2012 but not prior to that date. Whilst permission to appeal to the Court of Appeal has been granted, it is unclear at this stage whether that will proceed.

If you have any queries in relation to the rights to holiday pay for your employees who are on long term sick leave then do not hesitate to contact us. Theresa Carling is a specailist in all areas of employment law.

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