Carrying forward unused holiday after sickness 





A worker who has been unable 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 WTD (Sood Enterprises Limited v Healey [2013] UKEAT/0015/12/B1/1403). Member states can make their own rules about 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 to be entitled to carry it forward (Plumb v Duncan Print Group Limited [2015] UKEAT/0071/15/DA).





The right to carry forward statutory annual leave is not unlimited. The ECJ has tried to strike a balance between a worker’s need to take their holiday when they are well enough and the employer’s need to avoid large, uncertain liabilities to pay for unused holiday if the employment ends due to sickness absence, and to manage effectively 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. In Plumb v Duncan Print Group Limited [2015] UKEAT/0071/15/DA, the EAT has ruled that in the UK, holiday untaken due to sickness or injury can be carried forward for up to 18 months after the end of the holiday year in which it accrued. Any holiday untaken beyond that point will be lost. This interpretation, said the EAT, is consistent with the Directive’s health and safety purpose and with the International Labour Organisation Holidays with Pay Convention. 





Workers dismissed after long-term sickness absence are entitled to be paid for their unused statutory holiday, whether or not they asked to take it (NHS Leeds v Larner [2012] EWCA Civ 1034). 



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