Holiday pay and sick leave (1)

Plumb v Duncan Print Group Limited | EAT | 2015

Mr Plumb had an accident on 26 April 2010.  He did not return to work before he was dismissed on 10 February 2014.

Duncan Print’s holiday year ran from 1 February to 31 January.

Mr Plumb did not take any paid holiday in 2010, 2011 or 2012.

Mr Plumb applied to take his holiday for 2010, 2011 and 2013 in 2013 but Duncan Print refused.

When Mr Plumb was dismissed he claimed payment of accrued but untaken holiday pay for 2010, 2011, 2012, 2013 and 2014.

The Employment Tribunal rejected the claim.  It determined that Mr Plumb had not shown that he was unable, because of his condition, to take holiday during his sick leave.

The EAT decided that Mr Plumb could claim accrued but untaken holiday on the following basis:

• Mr Plumb did not need to show that he was unable to take holiday because of his condition.
• Mr Plumb, while on sick leave, could choose to take holiday but was not required to.
• If Mr Plumb chose not to take holiday he could take that holiday at a later date, including in another holiday year.
• The right to carry over holiday is limited. At most employees on sick leave can take holiday (or be paid in lieu on termination) within 18 months of the end of the holiday year in which it accrues.
• This is the case regardless of whether the employee is unable or unwilling to take holiday.

On the facts of the case Mr Plumb could not carry over or be paid in lieu of holiday accrued in 2010 and 2011 as he applied to take it (in 2013) more than 18 months after the end of the leave year in which it accrued.  Mr Plumb was, however, entitled to pay in lieu of holiday for leave years 2012 and 2013.

This case pulls together a number of principles from various ECJ cases over the years.

It confirms that:

• Holiday can be taken during sick leave.
• Holiday can be carried over whether the employee cannot take leave or chooses not to.
• At least for now, holiday can be taken (or paid in lieu) within 18 months of the end of the holiday year in which it accrues. This, in the EAT judgment, reflected the purpose of annual leave – to ensure a period of rest and relaxation which would no longer exist some years after the entitlement had accrued.

It is worth remembering that holiday continues to accrue during sick leave as well!