23 July 2015 - Post by:Felicity Gemson
We already know that workers who are on sick leave continue to accrue their minimum four weeks’ holiday (the portion guaranteed by EU law) and that they can carry over any unused holiday, subject to some restrictions, to a future holiday year. But, to be eligible to carry it over, must they show that they are physically unable to take it? No, says the EAT in the recent case of Plumb v Duncan Print Group Limited – they have a free choice whether or not to take their holiday when absent on sick leave, because their sick leave and holiday serve different purposes. And for how long can they carry it over? For up to 18 months from the end of the holiday year in which it accrued, says the EAT.
This is a helpful decision for employers as, against the tide of cases which potentially broaden holiday pay liability, it confirms that workers on long-term sick leave cannot bank their holiday indefinitely; they must use it within 18 months of the relevant holiday year or it will be lost. Of course – this being a holiday case – there are more questions. Is 18 months a “hard and fast” carry-over period or can employers apply a shorter carry-over period, such as 15 months, as European cases have previously endorsed? Until this is reconsidered on appeal or in other cases, it may be best to err on the side of caution by allowing 18 months – as other Tribunals may follow suit – or by remaining silent on the issue of carry-over and considering requests on a case-by-case basis. This carry-over policy can be confined to the first four weeks’ holiday entitlement; it doesn’t have to extend to the additional 1.6 weeks’ statutory holiday entitlement or to any extra holiday, unless agreed with the worker.