It is an established principle that if a worker is unable to take holiday due to sickness, they will be permitted to carry over their 4 weeks of European holiday derived from the Working Time Directive to the following holiday year. We now have some further clarity on how long an employee has to ‘use or lose’ the carried over holiday.
The Employment Appeal Tribunal (in Plumb v Duncan Print Group Ltd) confirmed that the Working Time Regulations (which implement the Working Time Directive into UK law) should be read as allowing a worker an 18 month period from the end of the leave year, to take any holiday accrued but not taken due to sickness absence. This rule applies to the entitlement to 4 weeks of European holiday only, and not the additional 1.6 weeks of UK holiday provided for under the Working Time Regulations, or any additional contractual holiday offered by the employer.
Additionally, a worker does not have to show that he was physically unable to take annual leave due to his sickness in order to benefit from carry-over. In the recent case of Plumb, there was nothing to suggest that the employee sought to take annual leave while he was on sick leave. Instead, it had to be inferred that he did not wish to do so, and he was therefore entitled to carry it over.
Employers should consider whether to state in their sickness absence policies, or in communications to employees returning to work following a significant period of sickness absence, that holidays carried over as a result of sickness absence must be taken within this 18 month period. In any case, managers should be made aware of these rules, and annual leave entitlement should be accurately recorded.