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 in order to be entitled to carry it forward (Plumb v Duncan Print Group Limited [2015] UKEAT/0071/15/DA).




The ECJ has said that this right to carry forward statutory annual leave is not unlimited. If unused holiday were allowed to build up indefinitely, it would lose its main purpose of rest and become “merely a period of relaxation and leisure”. The ECJ has tried to strike a balance here between a worker’s need to take 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 avoid problems and expense organising 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. The EAT has ruled specifically on this issue. In the case of Plumb v Duncan Print Group Limited [2015] UKEAT/0071/15/DA, the EAT confirmed that holiday untaken due to sickness or injury can be carried forward in the UK 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 interpretation, said the EAT, is consistent with the health and safety purpose of the WTD. It draws on the International Labour Organisation Holidays with Pay Convention. 




The right of workers dismissed after long-term sickness absence to be paid for their unused statutory holiday is available whether or not they asked to take that holiday (NHS Leeds v Larner [2012] EWCA Civ 1034). 




Holiday booked and taken when on 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.