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Employment Law

Legal guidance - compliance - software

Veale Wasborough Vizards , 18 JUL 2016

Useful reminder on annual leave entitlement and periods of sickness

Useful reminder on annual leave entitlement and periods of sickness
Helen Hughes
Solicitor, Veale Wasbrough Vizards

The European Court of Justice (ECJ) has reaffirmed that workers who are unable to utilise their annual leave entitlement due to a period of sick leave can take the leave at a different time and carry their entitlement over into a new leave year if necessary.

The facts

Sobczyszyn v Szkoła Podstawowa w Rzeplinie
was a Polish case in which Ms Sobczyszyn was a teacher working for a school in Poland. Under the Teachers' Charter in Poland, Ms Sobczyszyn was entitled to 35 days' annual leave per annum to be taken at times specified in a leave roster.

In 2011, Ms Sobczyszyn was on sick leave for an extensive period. The following year, she tried to claim that she was entitled to annual leave which she had accrued in 2011 but which she was unable to take due to her sick leave.

The school refused on the basis that, under her roster, her annual leave had to be taken between 1 to 31 July 2011 and this had been used up by her sick leave which extended between those dates.

Ms Sobczyszyn brought a claim in the Polish courts, which made a reference to the ECJ in relation to whether EU law precluded Polish law under the Teachers' Charter which prevented an employee carrying forward holiday entitlement untaken during a period of sick leave.

The decision

Reaffirming decisions in previous EU and UK cases, the ECJ confirmed that national legislation which prevents a worker from carrying over scheduled annual leave into a new leave year, where the worker has been unable to exercise their right to the leave due to sick leave, is incompatible with EU law.

Best practice

This case is a useful reminder for employers that workers cannot be prevented from carrying over any unused statutory annual leave entitlement into a new leave year, where they have been unable to take it due to sick leave, even where internal policies do now allow for annual leave entitlement to be carried over.

Although the decision in this case is limited to circumstances where scheduled annual leave on a roster could not be taken due to sickness absence, it is implied from this case and previous cases in this area that it would make no difference whether the annual leave has actually been scheduled or booked in. Workers will still be entitled to carry over unused statutory annual leave entitlement where they have prevented from taking annual leave due to sickness.

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