Plumb v Duncan Print Group Ltd

A worker on sick leave who is permitted to take paid annual leave during that period may choose whether to do so. The worker need not prove physical incapacity. If the worker does not wish to take leave while sick, the entitlement carries forward.

That entitlement is subject to a time limit. EU law requires, at most, that leave can be taken within 18 months after the end of the leave year in which it accrued. Regulation 13(9) of the Working Time Regulations 1998 must therefore be read compatibly with that requirement. Payment in lieu is due on termination for leave which has validly carried forward and remains untaken.

The claimant, a printer, was absent on sick leave from April 2010 until his employment ended in February 2014. He had not taken annual leave for the 2010, 2011 or 2012 leave years. In July 2013 he sought to take the earlier leave, but the employer refused.

The Employment Tribunal dismissed his claim for payment in lieu, holding that he had not shown that his medical condition made him unable to take annual leave. The appeal concerned whether physical inability had to be established and whether there was any limit on carrying leave forward during sickness absence.

1. Appeal partly allowed. The Employment Tribunal erred in law by requiring proof that the claimant was physically unable, because of his medical condition, to take annual leave. Where national law or contract permits annual leave during sick leave, the worker may take it then but cannot be required to do so. A worker who does not wish to take it during sick leave may take it later.
2. The distinction between sick leave and annual leave is material. Sick leave enables recovery from illness, whereas annual leave provides actual rest and relaxation for health and safety. The worker therefore need not demonstrate physical incapacity before relying on the right to defer annual leave.
3. Regulation 13(9) of the Working Time Regulations 1998 had to be interpreted, so far as necessary, to give effect to article 7 of the Directive. EU law did not require unlimited accumulation. The provision was to be read as permitting leave to be taken within 18 months of the end of the leave year in which it accrued, where the worker was unable or unwilling to take it because of sick leave.
4. The International Labour Organisation Convention could assist interpretation of the Directive but, not having been incorporated into domestic law, could not itself establish a domestic carry-over period.
5. Applying the 18-month limit, leave for the 2010 and 2011 leave years had expired before the claimant requested it. Leave for the 2012 leave year remained within time when employment ended and was payable in lieu. The matter was remitted to the Employment Tribunal to determine the amount. The respondent was ordered to pay £1,515 in appeal fees.

• Employment Tribunal: Claim for payment in lieu of annual leave for the 2010, 2011 and 2012 leave years dismissed.
• Employment Appeal Tribunal: Appeal allowed in respect of the 2012 leave year, dismissed in respect of the 2010 and 2011 leave years, and remitted for assessment of the payment due.