In Plumb v Duncan Print Group Ltd, the EAT has held that Reg 13(9) of the Working Time Regulations 1998 SI 1998/1833 must 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 he or she was unable or unwilling to take it because of sickness. The EAT also held that the worker is not required to demonstrate that he or she was physically unable to take annual leave by reason of his or her sickness in order to benefit from carry-over.
P was employed by DPG Ltd until February 2014. By that time, he had been on sick leave since April 2010 because of an accident. He neither took nor asked for annual leave until July 2013, when he wrote to DPG Ltd asking to take the leave that he had not taken since 2010. DPG Ltd agreed to pay for annual leave for the 2013/14 leave year 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 years.
The tribunal referred to the Court of Appeal’s decision in NHS Leeds v Larner (Brief 956) and decided that the key issue was whether P was unable to take his leave in those years due to sickness. The tribunal concluded that it did not have sufficient evidence of P being ‘unable’ to take leave. He gave evidence that his shoulder had been operated on on three occasions between 2010 and 2011 and that he was subsequently diagnosed as severely depressed but he continued to work at weekends and took a week’s holiday in 2012 in the UK. In the absence of any medical evidence the tribunal came to the conclusion that P was able to take his annual leave during his leave years. His claim therefore failed. P appealed to the EAT. He argued, among other things, that he was not required to establish that he was unable to take annual leave by reason of his medical condition, and that in order to be entitled to carry over leave it was sufficient that he was absent on sick leave and did not choose to take annual leave during the relevant periods.
The EAT agreed that the tribunal had erred in law. The EAT reviewed the European and domestic case law and summarised the position in relation to annual leave and sickness. It noted that, if an employee is not permitted by contract or legislation to take annual leave during a period of sick leave which coincides with a leave year, he or she is entitled to take annual leave in a subsequent leave year. If, on the other hand, he or she is permitted to take annual leave while on sick leave, he or she may either take annual leave during the sick leave or take it at a later date. The EAT went on to hold that an employee who is absent from work on sick leave is not required to demonstrate that he or she is physically unable to take annual leave by reason of his or her medical condition. It did not consider that the Court of Appeal in Larner laid down any principle of law to this effect. In the present case, since there was nothing to suggest that P sought to take annual leave while he was on sick leave, it had to be inferred that he did not wish to do so and so he was entitled to carry it over.
The next question was whether any limitation ought to be placed on the right to carry over leave. P accepted before the EAT that the European case law allows for the imposition of limits on the length of time for which leave can be carried over but argued that, since no such limits had been provided for in legislation or in his contract of employment, the carry-over period in his case was unlimited. The EAT rejected this argument. It noted that Reg 13(9) of the Working Time Regulations 1998 SI 1998/1833 provides that annual leave must be taken in the year in which it is due. It has been established that Reg 13(9) must be interpreted to include an exception for persons on sick leave who are unable or unwilling to take annual leave during the leave year but that exception need go only so far as required under the Working Time Directive (No.2003/88). Since the European case law indicates that the Directive requires at most 18 months of carry-over in such circumstances, that limit should be read into the Regulations. Therefore, Reg 13(9) need only 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 he or she was unable or unwilling to take annual leave because of sickness. Accordingly, P was entitled to payment in lieu of annual leave for the 2012/13 leave year but no earlier.
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