There has been much litigation on the issue of whether an employee is entitled to carry over holidays which they have been unable to take due to being off sick. In previous cases, the European Court of Justice (ECJ) has ruled that workers continue to accrue holiday entitlement while they are on long term sick leave. The ECJ has also stated that workers should be given the opportunity to choose either to take paid annual leave during a period of sick leave, or take the leave on their return to work, potentially in the next holiday year.
The recent case of Sobczyszyn v Szkola Podstawowa w Rzeplinie considered this issue again and confirmed the judgements issued in previous cases. Ms Sobczyszyn, a teacher, was entitled to 35 days holiday. She was scheduled to take holiday from 1st to 31st July 2011. However, she was absent from March to November 2011 on what her contract referred to as ‘convalescence leave’ where she was undergoing treatment by a doctor. In 2012, she claimed that she should be allowed to take the holidays she had accrued but been unable to take during that time. The school refused and argued that her holiday entitlement had been ‘used up’ during her sick leave.
When the case reached the ECJ (having been referred by the courts in Poland) it confirmed the importance of the annual leave provisions of the Working Time Directive and noted the different purpose of annual leave, being for rest, relaxation and leisure, as compared to sickness or convalescence leave, which is to recover from an illness. The court concluded that provided the national courts are satisfied that the period of sick leave was for a different purpose than annual leave, a national law preventing unused annual leave in one holiday year from being carried over to a subsequent leave year where that leave cannot be taken because of sickness absence is incompatible with the Working Time Directive.
The previous decisions of the ECJ on this issue have been unpopular with the UK government. The decisions of the ECJ have highlighted that the UK Working Time Regulations (WTR) are incompatible with EU law, as the WTR expressly state that carry over is not permitted. It should be noted that the decisions of the ECJ only apply to the four weeks’ annual leave entitlement provided by the EU Directive, and not the additional 1.6 weeks provided for by UK law or any additional contractual entitlement which employers may give.
While there is a general right of carry over where holidays cannot be taken due to sick leave, the period by which that untaken leave must be taken is not indefinite. Earlier cases have suggested that if an unused holiday is not taken within an 18 month period following the worker’s return to work, then it may be lost.
This is one area which may be subject to change in the future, as many commentators suggest that the UK government may seek to legislate away from the EU position following the UK exit from the European Union. However, given this is at least 2 years away, the decisions of the ECJ must continue to be followed in the meantime.