Carrying Holiday Over When an Employee is Sick

Recent case law states that if an employee is sick, annual leave in excess of the 4 week period under the EU Working Time Directive, does not have to be carried forward to the next year.

This time of year many staff are often using up annual leave, with Brexit constantly in the headlines how employees and workers are treated and their rights is a moveable minefield for business owners.

What to do about holiday entitlement and days carried over when a member of staff has been off sick is question our Employment Solicitors are often asked.

A recent case in the CJEU confirmed that only 4 weeks can be carried over and there is no right to carry over any more than that under the law unless there is a contractual right.  So if an employee is ill and has not taken any holiday leave and wants to carry it over there is no law stating they can carry more than the 4 week EU directive – other holiday is simply lost, unless there is a contractual right to carry over.

The recent test case in the CJEU (TSN v Hyvinvointialan) was brought by staff who had not taken annual leave due to illness (one had 7 weeks leave, the other 5 weeks) and wanted it carried over, their request was turned down as it exceeded the minimum four week period laid down in Article 7 (1).  The Court said Member states had some autonomy to grant, or not to grant, carry over of leave.

This questions the Working Time Directive and whether an EU member state is obliged to permit carry over of annual leave due to sickness from one year to the next.

“This case reaffirms the UK case law that unless there is contractual right to carry over holiday entitlement if the employee does not use it they lose it.   However, when employees and or workers are on long term sickness absence they can only carry over the four weeks which derives from the EU legislation of the Working Time Directive,” said Susan Mayall, Head of Employment at Pearson.

The Court of Justice of the European Union (CJEU) ensures a consistency of approach in respect of EU law to make sure it is applied uniformly in all EU countries.  It also settles legal disputes between national governments and EU institutions and governments.   It can also in some circumstances be used by individuals, companies or organisations to take action against an EU institution, if they feel that their  rights have somehow been infringed.

For advice on employment law contact Susan Mayall on 0161 785 3500

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.