Carrying forward unused holiday after sickness absence



A worker who has not been able to take statutory holiday during the holiday year because of sickness must be allowed to carry that holiday forward into the next holiday year, even if the employment contract expressly forbids this (Dominguez v Centre Informatique du Centre Quest Atlantique [2012] EUECJ C-282/10). 



This right to carry forward annual leave unused due to sickness absence applies only to the four weeks of holiday under the Working Time Directive (Sood Enterprises Limited v Healey [2013] UKEAT 0015/12/B1/1403). Member states can make their own rules about any annual leave beyond the mandatory four weeks (Neidel v Stadt Frankfurt am Main [2012] EUECJ C-337/10).



A worker does not have to prove that they were too sick or injured to take their statutory holiday in order to be able to carry it forward (Plumb v Duncan Print Group Limited [2015] UKEAT/0071/15/DA).



The ECJ has said that the right to carry forward statutory annual leave is not without limits, and that unused holiday must not be allowed to build up indefinitely, or it would lose its main purpose of rest and become “merely a period of relaxation and leisure”. It may also cause problems for the employer who would be building up a liability to pay for large amounts of unused leave if the employment eventually ends due to sickness absence, and who may struggle to organise cover during the absence (KHS AG v Winfried Schulte [2011] EUECJ C-214/10). Collective agreements and national laws can fix a cut-off point for any carry forward of annual leave, but it must not be too short. As a guide, in Schultz-Hoff v Deutsche Rentenversicherung Bund [2009] EUECJ C-350/06, a carry-forward limited to six months was judged too short, whereas a 15-month cut-off point in the Winifried Schulte case was acceptable.



In Plumb v Duncan Print Group Limited [2015] UKEAT/0071/15/DA, the EAT tackled this issue by drawing on the International Labour Organisation’s Holidays with Pay Convention. This ruling establishes that holiday untaken due to sickness or injury can be carried forward for a maximum of 18 months after the end of the holiday year in which it accrued. Any holiday left untaken beyond that point will be lost. This ruling, said the EAT, is consistent with the Directive’s health and safety purpose. 



In the public and the private sector, workers dismissed following a period of long-term sickness absence are entitled to be paid for any unused statutory holiday left at the end of the employment whether or not they asked to take it. This was decided in NHS Leeds v Larner [2012] EWCA Civ 1034, a case supported by general union Unite. 



As always, these rulings apply only to the four weeks of holiday under the Working Time Directive. The UK can make its own laws about the extra 1.6 weeks of statutory holiday.



Holiday taken during sickness absence must be paid at the normal rate of pay (see page 130). It makes no difference that rights to contractual and statutory sick pay have been exhausted.