Workers On Sick Leave - No need to demonstrate inability to take annual leave
A recent case has confirmed that workers do not need to show that they are unable to take annual leave because of their medical condition in order to carry over any accrued and unused statutory holiday to a subsequent leave year. It is sufficient that they are on sick leave and do not choose to take annual leave during that period.
However, the right to carry over leave is not unlimited. The Employment Appeal Tribunal (EAT) held that the Working Time Regulations only require that workers on sick leave take holiday within 18 months of the end of the leave year in which it accrues.
Mr Plumb was on sick leave from April 2010 until February 2014, when his employment was terminated. His holiday year ran from 1 February to 31 January. In September 2013 Mr Plumb requested permission to take all of his accrued holiday entitlement from 2010 as he had not taken any whilst on sick leave. His employer agreed to pay for accrued holiday for the current leave year (2013/2014) but refused his request in relation to the previous three years. Following the termination of his employment a few months later, Mr Plumb brought a claim for payment in lieu of untaken holiday.
The Working Time Directive (2003/88/EC) provides that every worker is entitled to at least four weeks of paid annual leave. Regulation 13(9) of the Working Time Regulations 1998 (which implemented the Directive in Great Britain) provides that this statutory leave must be taken in the year that it is due and may not be replaced by a payment in lieu except on termination of employment.
However, in Pereda –v- Madrid Movilidad SA  IRLR 959 the ECJ held that workers who do not wish to take their holiday entitlement during a period of sick leave must be granted the holiday at a different time even if that means it is carried over to the next leave year. In NHS Leeds –v- Lamer  IRLR 825 it was held that Regulation 13 should be read as including additional wording in order to be interpreted in line with the Directive. This results in a requirement that leave may only be taken in the year in which it is due “save where the worker was unable or unwilling to take it because he was on sick leave and as a consequence did not exercise his right to annual leave”.
The EAT held that the wording implied by Larner did not set a principle that a worker must be able to demonstrate that they are physically unable to take annual leave in order to be entitled to carry leave over into the next year. The EAT stated that it is not possible to differentiate between inability and unwillingness to take holiday entitlement during a period of sick leave and that a worker may choose not to take holiday during their sick leave. As such, Mr Plumb was entitled to take his leave at a later date.
However, Mr Plumb was only entitled to carry over unused leave for a maximum of 18 months after the end of the leave year. This is because the Working Time Regulations must be interpreted in the light of the wording and purpose of the Working Time Directive. The Directive provides that the purpose of annual leave is to ensure the health and safety of workers and ceases to reflect his purpose when it goes beyond a certain time limit, considered to be 18 months by virtue of Recital 9 of the Directive. As such, Mr Plumb was only awarded payment in lieu in respect of unused holiday for the 2012/2013 leave year and not the first two years he was also claiming.
This case has provided some useful clarification of the law in this area. Firstly, workers on sick leave do not need to provide evidence that they are physically unable to take holiday. If they do not request to take their holiday entitlement whilst they are on sick leave it should be assumed that they are unwilling or unable to take it. Any remaining holiday should be carried over to the next leave year but must be taken within 18 months of the end of the original leave year.
Posted on 08/05/2015 by Ortolan