News & Events

Are sick workers entitled to carry over annual leave?

Submitted By Firm: Addleshaw Goddard

Contact(s): Michael Leftley, Sarah Harrop


Amanda Steadman

Date Published: 10/6/2015

Article Type:

Share This:

The EAT has held that sick workers do not have to demonstrate that they were unable to take annual leave during a period of sickness absence in order to carry over the annual leave into a new leave year. The mere fact of being absent on sick leave and having not made a request to take the annual leave demonstrated an unwillingness to take annual leave and this was sufficient. It also held that the maximum carry over period is 18 months (Plumb v Duncan Print Group).


Entitlement to carry over annual leave

Our domestic legislation originally stated that annual leave had to be taken in the leave year in which it was due and it could not be paid in lieu, save upon termination (regulation 13 (9) of the Working Time Regulations 1998 (WTR)). However, these provisions conflicted with the ruling of the ECJ in Pereda v Madrid Movilidad SA, where it was held that if workers did not wish to take their annual leave entitlement during a period of sick leave then the annual leave must be granted at a different time, even if it meant carrying it over to another leave year.

This conflict was resolved by the Court of Appeal in the case of NHS Leeds v Larner where the following words were read into regulation 13(9) of the WTR to allow compliance with the Working Time Directive (WTD): "Leave to which a worker is entitled under this regulation may be taken in instalments, but (a) it may only be taken in the leave year in respect of which it is due, save where the worker was unable or unwilling to take it because he was on sick leave and as a consequence did not exercise his right to annual leave". The Court also read words in to allow any carried over leave to be included in a pay in lieu of accrued but untaken holiday upon termination.

Further, in the case of Sood v Healey the EAT confirmed that the requirement to allow the carry over of annual leave for sick workers only applied to leave which was derived from the WTD (i.e. 4 weeks' leave per annum). The WTR prohibits the carry over of the additional 1.6 weeks' granted under the WTR, unless there is a relevant agreement.

Limitations on the right to carry over

Although it was clear that the carry over of annual leave for sick workers must be permitted, what was less clear was whether this was an unlimited right. In the case of KHS AG v Schulte the ECJ held that there should be a limitation on the carry over period, although the carry over period should be significantly longer than the leave year. In that case the ECJ held that a carry over period of 15 months was lawful, although it was not clear whether this was the minimum for all cases or fact specific. Indeed, the Advocate General in that case had recommended a carry over period of 18 months, on the basis of the recommendation set out in the International Labour Organisation (ILO) Convention.

In Plumb the EAT had to consider whether a worker who had not asked to take holiday whilst on sick leave was entitled to a pay in lieu of 3 years' worth of accrued statutory leave upon termination.


The Claimant had an accident at work and was off sick between 26 April 2010 and 10 February 2014 when his employment terminated. Whilst off sick he didn’t ask to take any annual leave until September 2013, when he asked to take all of his leave from 2010 onwards. The employer agreed that he could take the 13/14 leave but refused the requests for the 10/11, 11/12 and 12/13 leave years. When his employment terminated in February 2014, the Claimant brought a claim for a payment in lieu of accrued but untaken holiday from the three outstanding leave years.

Applying Larner, the Employment Tribunal (ET) held that the key issue was whether the Claimant was unable to request leave due to his medical condition. They noted that although the Claimant had had surgery on various occasions throughout his sick leave and was also depressed, he had continued to work at weekends at a local B&Q store and he had also taken a week's holiday in 2012. The ET said that these facts "severely damaged" the argument that the Claimant had been unable to take annual leave. They concluded that the Claimant had been able to take the leave. Therefore, the test introduced by Larner had not been satisfied and the leave did not carry over. The Claimant appealed.

EAT decision

Entitlement to carry over annual leave

The Claimant argued that it was not necessary for sick workers to show that they were "unable" to take their annual leave in order to carry it over. Rather, it was sufficient to be on sick leave and choose not to take the annual leave.

The EAT held that the ET had erred in concluding that sick workers had to show they were unable to leave because of their medical condition. The WTD provides that sick workers are not required to take annual leave during a period of sick leave, but may choose to do so. If they choose not to do so, then they must be allowed to take it at a later period. The EAT highlighted that the purpose of sick leave is to enable recovery from illness, whereas the purpose of annual leave is to enable periods of rest and relaxation for reasons of health and safety. They concluded that it would not be consistent with the underlying purpose of these two rights to compel a sick worker to take annual leave during a period of sick leave if they did not wish to do so.

They also held that it was not possible to separate inability and unwillingness to take annual leave during a period of sick leave. The ET had been were wrong to focus on inability alone: if an employee is on sick leave and chooses not to request annual leave then the issue of whether they are willing to take the leave is inevitably engaged. Here, the Claimant had been on sick leave and had not asked to take annual leave. The only inference that could be drawn from this is that he was unwilling to take annual leave. Therefore, the test in Larner was satisfied and the Claimant was entitled to carry over the accrued but untaken annual leave for all years.

Limitations on the right to carry over

The next question was whether any limitation on the length of carry over should be imposed.

The Claimant argued that there were no limitations on the carry over period in UK law. He also submitted that the provisions of the ILO Convention were not enforceable in the domestic courts in the UK. The EAT rejected these arguments and held that an 18 month carry over limit applied. They considered that regulation 13(9) should be interpreted as far as possible in light of the wording and purpose of the WTD. That purpose was the health and safety of workers. Carried over annual leave ceased to reflect that purpose after a certain amount of time had elapsed. Further, recital 9 of the WTD provides that the ILO Convention principles were relevant to the interpretation of the WTD. Therefore, the EAT concluded that the WTD does not require indefinite carry over - "at most" it required carry over of 18 months.


This decision helpfully provides clarity that the upper limit for carry over of annual leave derived from the WTD is 18 months. Employers may wish to amend holiday and sickness absence policies accordingly, remembering that this decision does not apply to the additional 1.6 weeks' WTR-derived annual leave or any additional contractual annual leave. It is also worth noting that leave to appeal this decision has been granted and so this may not be the last word on the subject.

Plumb v Duncan Print Group


Find a Member

View or print a complete ELA member list »

Client Successes

Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

David T. Flanagan
Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

Stephen HirschfeldAs an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld

Hollywood Entertainment Corporation

As the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.

Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

Jennifer Martinez
Vice President, Human Resources

Nikkiso Cryo, Inc.

Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.

Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

Stacy Murphy
Former Senior Director of Human Resources

Rich Products

As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.

Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits

Ricoh Americas Corporation

We have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.

A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.

Roberts-Gordon LLC

Our affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.

Rockwell Collins, Inc.

We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.

Elizabeth Daly
Assistant General Counsel


Sanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.


We own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance.

Wilmington Trust Corporation

Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.

Michael A. DiGregorio
General Counsel