Employment Law Update July 2015
Sickness absence is often a key issue for employers therefore we are aware that clarity on points of procedure is welcomed. Plumb v British Printing Industries Federation (2015) (E.A.T) provides some clarity for employers regarding carrying over annual leave during sickness absence.
Case summary
The claimant was absent from work due to sickness from early 2010 until his dismissal in 2014. The claimant didn’t take or request annual leave until July 2013, when he wrote to his employer requesting to take the leave that he had not taken since 2010. The employer agreed to pay for annual leave for the 2013/14 leave only but advised that previous leave would be lost. The claimant submitted an ET claim against this decision.
The Employment Tribunal dismissed the claim on the basis that there was no evidence to support that his medical condition was the reason he did not take his leave. The ET concluded that he was able to take his annual leave during his leave years, so his claim was rejected. The EAT considered the appeal against the ET decision.
Key points raised at appeal
The EAT deemed that the law had been misinterpreted by the employment tribunal
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.
Clarity was sought in terms of limitations on the period for which an employee may take unused annual leave accrued in one leave year in later years
The EAT ruled that such leave cannot be carried forward indefinitely and that it may be limited to 18 months' carry forward from the end of the leave year
The appeal was therefore in part upheld
Our advice
The 18 month limitation on the carrying over of leave should be noted and that this only refers to paid statutory holiday as required by EU Law.
Your policies should be reviewed to reflect this.
Employers should however remain focused on staff welfare matters and supporting individuals in returning to work. This may incorporate a phased return to work to expedite their return.
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