In Plumb v Duncan Print Group Ltd, the EAT has held that Reg 13(9) of the Working Time Regulations must be read to permit a worker to take annual leave within 18 months of the end of the leave year in which it accrued where he or she was unable or unwilling to take it because of sickness. The worker is not required to demonstrate that they were physically unable to take annual leave because of their sickness in order to receive the carry-over.
In this case the employee had been off sick for over three years following an accident and the employer agreed to pay for holiday for the last leave year (2013) but not in respect of 2010, 2011 or 2012. Following the termination of his employment, P brought a claim for payment in lieu of annual leave for these earlier years which equated to 60 days holiday. It is worthy to note that the case revolved around the four weeks’ leave granted by Regulation 13 and not any additional leave under Regulation 13A.
The EAT found that Article 7 of the Working Time Directive does not require a sick employee to take annual leave during the leave year or to show he was unable by reason of sickness to take the leave: he may be unable or unwilling to take it and is entitled to take it at a later date. This was in accordance with the decision of Larner (reported previously in my news post).
The EAT also held that P was entitled to payment in lieu of annual leave for the 2012/13 leave year but no earlier. Since the European case law indicated that the Directive requires at most 18 months of carry-over in such circumstances, that limit should be read into the Reg 13(9) so as to enable a worker to claim this far back only.