Employment Law News Analysis

European Court of Justice rules worker prevented from taking annual leave due to sickness can carry it forward to next holiday year

David Reid
9th Aug 2016

In the case of Sobczyszyn v Szkoła Podstawowa w Rzeplinie, the European Court of Justice (ECJ) considered whether a Polish teacher who was unable to take her scheduled holiday before the end of the holiday year due to sickness absence was entitled to carry it forward to the next holiday year.

Employment law sicknote

In the case of Sobczyszyn v Szkoła Podstawowa w Rzeplinie, the European Court of Justice (ECJ) considered whether a Polish teacher who was unable to take her scheduled holiday before the end of the holiday year due to sickness absence was entitled to carry it forward to the next holiday year.

Ms Sobczyszyn was a teacher in a School in Poland. She was entitled to 35 days’ annual leave each year. Ms Sobczyszyn was on sick leave between 28 March and 18 November 2011. On 27 April 2012, Ms Sobczyszyn claimed she was entitled to the annual leave she had accrued in 2011 but had been unable to take due to her sick leave. The school refused, arguing that under the 2011 leave roster she should have taken her annual leave between 1 and 31 July 2011 and her entitlement had therefore been "used up" by her sick leave which extended over that period.

 

Ms Sobczyszyn brought a claim in the Polish courts, and the case was referred to the ECJ for a preliminary ruling on the matter.

 

The ECJ held that a worker can carry over unused annual leave at the end of the leave year where they have been on sick leave for the whole or part of the leave year and not therefore had the opportunity to exercise their right to take their scheduled leave, so long as the national court is satisfied that the annual leave and sick leave have different purposes.

 

The right to paid annual leave is intended to enable the worker to rest and enjoy a period of relaxation and leisure, whereas sick leave is intended to enable a worker to recover from an illness. In light of the different purposes of the two types of leave, the ECJ noted that it had previously held that a worker who takes sick leave during a period of previously scheduled annual leave has the right to request that the annual leave is taken at a different time when they are not on sick leave.

 

This case again highlights that in the UK Regulation 13(9) of the Working Time Regulations 1998 (which provides that statutory annual leave entitlement can only be taken in the leave year to which it relates) is incompatible with the ECJ's view that carry over may be necessary in cases of sickness absence in order to preserve workers' rights under Article 7 of the Working Time Directive, which provides that EU Member States must take measures to ensure that every worker is entitled to paid annual leave.

 

However, in the current political climate, it seems unlikely that this is an issue the government will address any time soon, if at all.

 

Full case details can be read here:

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