INSIGHT: Taking Annual Leave and Sick Leave Concurrently

If sickness prevents a worker taking annual leave, can leave be carried forward?

Yes, reaffirmed the ECJ in Sobczyszyn v Skola Podstawowa w Rzeplinie, but whether or not such employment law with be changed post Brexit remains to be seen.

Ms Sobczyszyn, a teacher, took convalescence leave provided by a Teachers' Charter and was unable to use her annual leave. The school said that leave had been used during convalescence. A reference was made to the ECJ on the compatibility of the domestic Polish Teachers' Charter with the Working Time Directive 2003/88/EC.

Article 7(1) provides four weeks' annual leave for every worker which is a fundamental tenet of EU social law. Only on termination can payment be made in lieu. Annual leave accrues during sick leave and if scheduled leave coincides with sickness, a worker can designate a different time to take leave. The purpose of paid leave is rest and relaxation and as such sick leave is for recovery from illness, it is not rest; and so annual leave can be rescheduled on recovery.

“This case tells us nothing new as employees on long term sick leave have had the right to carry over holidays or take holidays whilst on sick leave for some time now, however, this right which comes from European case law may be one of the current employment laws to be changed following Brexit,” said Head of Employment, Susan Mayall.

“Employers and workers alike often find it difficult to understand the rationale behind giving a person on sick leave a holiday and employers often comment ‘a holiday from what?’” she added.  

“The difference is however the workers enjoy the benefit of holiday pay, often after their contractual and statutory sick pay entitlements have expired, whereas employers are required to make holiday payments to employees who are on long term sick.”

Whether leave has been scheduled or booked makes no difference: if sickness prevents annual leave, workers must be able to use annual leave at a later date.

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