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Carry over of untaken annual leave

Under the Working Time Directive (the Directive), workers are entitled to paid annual leave of at least four weeks. The Directive’s aim is to make sure that a worker recuperates from the effort and stresses of work.

Where the worker is off on long term sick, the question of whether the worker can carry over accrued untaken annual leave whilst off sick and for how long has been considered by the Employment Appeal Tribunal (EAT) in the case of Plumb v Duncan Print Group Ltd [2015].

Background

Mr Plumb, a printer, went off sick in April 2010 following an accident. In July 2013, Mr Plumb asked to take leave accrued since the commencement of his sick leave from April 2010. Duncan Print Group Ltd declined to allow Mr Plumb to take any annual leave that he would have accrued in 2010, 2011 or 2012 and agreed to let him take annual leave accrued in 2013/2014. Mr Plumb subsequently left his employment in February 2014 and brought a claim for payment in lieu of 60 days’ annual leave accrued but untaken for those years.

The Employment Tribunal (ET) looked at whether Mr Plumb had been ‘unable’ to take annual leave in 2010, 2011 or 2012. It did this by considering whether Mr Plumb’s medical condition had in some way meant that he was unable to take the annual leave. The ET concluded that despite the fact that Mr Plumb had undergone several operations and had suffered from severe depression, there was not sufficient medical evidence to suggest that he was unable to take the annual leave in those years. Consequently, the ET concluded that Mr Plumb was able to take annual leave during 2010, 2011, 2012 and his claim failed. Mr Plumb appealed.

Decision

The EAT held that the ET had got it wrong and an employee is not required to demonstrate that they had been physically unable to take annual leave in previous years due to their medical condition. The EAT stated that it did not matter whether the employee was unable or unwilling to take leave in those previous years, they must still be entitled to carry over untaken annual leave. In relation to the question of how long the untaken annual leave could be carried over for, the EAT stated that following European case law, this is limited to 18 months from the end of the leave year. Therefore, Mr Plumb succeeded in obtaining compensation for accrued untaken annual leave for 2012 but not for 2010 or 2011.

Comment

This case applies to the first four weeks of annual leave and not the additional 1.6 weeks under the Working Time Regulations 1998. Employers can state in contracts that the additional 1.6 weeks is lost if it is not taken in the relevant annual leave year.

In view of the generous periods that employees can carry over untaken accrued annual leave, employers are advised to encourage its employees on long term sick to take accrued annual leave in or shortly after the annual leave year in question. Otherwise, the employer may face backdated claims.

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further