Holiday and sickness absence: Employers are only required to allow carry-over of four weeks' holiday for workers on sickness absence

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Holiday and sickness absence: Employers are only required to allow carry-over of four weeks' holiday for workers on sickness absence

Published 11 December 2019

The European Court of Justice has held that carried over holiday for workers unable to take it during the holiday year can be restricted to four weeks.

THE FACTS

Under current law, employers must permit workers who are unable to take their statutory annual holiday entitlement during the holiday year because of sickness absence to carry the holiday over to the next year. However, there has been some doubt at a European level as to whether this requirement applies only to the four week entitlement prescribed by European legislation, or whether this also applies to the enhanced entitlement which some European member states, including Great Britain, prescribe. In Great Britain, following EAT case law, most employers have taken the view that the requirement to carry over only applies to the four week period, rather than the 5.6 week entitlement prescribed by the Working Time Regulations.

The European Court of Justice (the ECJ) has now confirmed that employers are only required to permit four weeks carry-over.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This is helpful confirmation, and likely to be consistent with the approach already taken by most employers. It is welcome news that unless there is a contractual entitlement to the contrary, employers only need to permit employees who have been absent on sick leave to carry over four weeks of their holiday entitlement. Employers may therefore wish to review their contractual arrangements if these currently provide for a higher amount of carry-over of leave.

Terveys- ja sosiaalialan neuvottelujarjesto (TSN) ry v Hyvinvointialan liitto ry and Auto- ja Kuljetusalan Tyontekijaliitto AKT ry v Satamaoperaattorit ry (Joined cases C-609/17 and C-610/17)

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

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