Sickness during annual leave: is the worker entitled to carry forward unused holiday to the next holiday year? - DAC Beachcroft

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Sickness during annual leave: is the worker entitled to carry forward unused holiday to the next holiday year?

Published On: 2 August 2016

In this case, the ECJ confirmed that workers who are prevented from taking scheduled annual leave because they are on sick leave are entitled to carry the annual leave over into the next leave year.

The facts

Mrs Sobczyszyn is a teacher in Poland. Rights and obligations for teachers under Polish Law are set out in a "Teachers' Charter". The Teachers' Charter (so far as is relevant to Mrs Sobczyszyn) gives teachers the right to 35 days' annual leave which has to be taken at a time specified in a leave roster, and also to convalescence leave, effectively a type of sick leave.

In 2011, Mrs Sobczyszyn took a period of convalescence leave at a time when she would have been taking her rostered annual leave. In 2012, she asked to take the annual leave entitlement that she had not been able to take during her convalescence leave. Her employer refused on the grounds that her annual leave entitlement had been "used up" by the period of convalescence leave.

The Polish court referred the case to the EJC. The ECJ was asked to decide whether the Working Time Directive prohibits a national law that would prevent an employee on convalescence leave during scheduled holiday from taking that annual leave during a later period. This is relevant to UK employers because the Working Time Regulations (the European law that implements the Working Time Directive in the UK) expressly rules out carry-over of holiday leave to the next holiday year.

The ECJ followed existing case law, holding that such a national law would be prohibited by the Working Time Directive.

What does this mean for employers?

This confirms earlier ECJ case law, so does not change the existing situation. For UK employers, this means that workers who have not been able to take their entitlement to four week's annual leave during a holiday year because they have been off sick can carry the four weeks’ annual leave over to another holiday year. This does not apply to the additional UK statutory entitlement of 1.6 weeks, or any additional contractual holiday entitlement.

Employers should check their annual leave policy to ensure that it sets out the circumstances under which holiday can be carried over to subsequent holiday years.

ECJ judgments to date remain relevant at least until the UK leaves the EU (and probably beyond), so employers do need to be mindful of the impact of these decisions. The same applies to any new decisions between now and the UK's formal exit. Whether new European case law after the date of Brexit will still be relevant to the UK will depend on the terms of the UK's exit. We will of course keep you posted.

Sobczyszyn v Szkola Podstawowa x Rzeplinie C-178/15 

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