The Employment Appeal Tribunal has recently held that Regulation 13(9) of the Working Time Regulations 1998 must be read so as to allow a worker to take annual leave within 18 months of the end of the leave year in which it accrued where that worker was unable or unwilling to take the leave due to ill health.
In the case of Plumb v. Duncan Print Group Limited, Plumb had been on sickness absence from April 2010 following an accident and was employed by Duncan Print Group until February 2014. He asked for annual leave in July 2013, claiming that his annual leave had accrued from April 2010. The employer agreed to pay for annual leave for the 2013/2014 period but not for anything prior to that. Plumb brought an Employment Tribunal claim for payment in lieu of annual leave for 2010, 2011, and 2012. The Employment Tribunal rejected the claim stating that it did not have sufficient evidence of Plumb being "unable" to take his annual leave.
On appeal to the EAT, the EAT ruled that the Tribunal had erred in law and that an employee who is absent on sick leave is not required to demonstrate that he or she is unable, due to sickness, to take the annual leave. As such, Mr. Plumb could simply be unwilling to take the leave during the time that he was sick.
The EAT then considered whether any limitation should be placed on the right to carry over leave in such circumstances. Regulation 13(9) of the Working Time Regulations 1998 provides that annual leave must be taken in the year in which it is due. Cases from the European Courts though have indicated that the requirements of the Directive are, at most, 18 months of carry-over in these circumstances. As such, in the present case, Plumb was entitled to payments for accrued annual leave for the 2012/2013 and the 2013/2014 leave years, but he was not entitled to any earlier payments.