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Important Employment Appeal Tribunal decision on annual leave carry over

Employees who are on sick leave for an entire leave year will only be able to maintain their entitlement to take leave which was accrued whilst off sick for a period of 18 months, an Employment Appeal Tribunal has found.

The 18 month period must begin at the end of the leave year in which the annual leave was accrued. Employers will welcome this decision, because it removes the uncertainty over how accrued but untaken annual leave is to be treated when an employee has not taken leave because they are sick.

In Plumb v Duncan Print Group, the EAT also decided that an employee does not have to show that, whilst he is away from work on sick leave, he is unable to take annual leave. Merely being absent through sickness is enough to show an inability to take it.

This decision also means that the opportunity to be paid in lieu of this accrued but untaken holiday when employment is terminated also disappears after the 18 month time limit.

It would appear that the time restriction can applied even where there is no contractual provision within an employee’s documentation to impose it.

Employees may request annual leave whilst they are on sickness absence, in which case the employee should be paid normal holiday pay. Even though it may seem at odds to employers to permit the leave request, it reduces the amount of leave that then can be carried over into a new leave year with a new set of leave entitlement.

Employees cannot be forced to use annual leave when they are on sickness absence, and, as this case has shown, do not have to go to any lengths to show that they were unable to take the leave while they were sick. If they do not want to take leave whilst they are off sick, they are entitled to carry it over until the newly applicable time threshold.

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Nicola Mullineux

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