The Employment Appeal Tribunal has released a judgement in Plumb v Duncan Print Group Ltd holding that there is an 18 month limit on annual leave carry forward for sick workers.
Regulation 13(1) of the Working Time Regulations 1998 provides that “… a worker is entitled to 4 weeks’ annual leave in each leave year''. This leave entitlement derives from Article 7 of the Working Time Directive. Regulation 13(9) of the Working Time Regulations goes on to provide that: “Leave to which a worker is entitled under … [Regulation 13] may only be taken in the leave year in respect of which it is due, and… may not be replaced by a payment in lieu except where the worker's employment is terminated”.
In Plumb v Duncan Print Group Ltd the EAT held that “Regulation 13(9) … needs only be interpreted to the extent necessary to give effect to the Directive. EU law does not confer an unlimited right to carry over periods of annual leave to subsequent years. The Directive, at most, only requires that employees on sick leave are able to take annual leave within a period of 18 months of the end of the leave year in respect of which the annual leave arises. Consequently, Regulation 13(9) … is to be read as permitting a worker to take annual leave within 18 months of the end of the leave year in which it accrued where the worker was unable or unwilling to take the annual leave because he was on sick leave and, as a consequence, did not exercise his right to annual leave.”
In other words, the EAT has held that there is an 18 month upper limit on the period of carry forward. The 18 month period starts to run from the end of the holiday year to which the leave relates. It applies where the reason for not taking holiday was the worker’s sickness absence. There is no basis for supposing that a more flexible interpretation should be applied in respect of workers who simply fail to avail themselves of their holiday entitlement within a particular holiday year.
However, this may not be last word, because the EAT has given both parties leave to appeal to the Court of Appeal.
Also note that this decision did not consider the additional 1.6 weeks’ annual leave that arises under Regulation 13A. That entitlement arises purely under domestic law and not from the Working Time Directive. The Working Time Regulations deal specifically with carry forward of Regulation 13A leave at regulation 13A(7), which provides that carry forward may be permitted - for one holiday year only - if a “relevant agreement” (usually the worker’s contract) allows it.
Posted on 09/07/2015 in BWB PublicationsBack to Knowledge