News & Insights

Reached the Finnish line on sick leave?

Christian Meredith reports on whether annual leave in excess of the EU minimum must be carried over for sick workers.

In a combined case from Finland the European Court of Justice (ECJ) confirmed that annual leave in excess of the 4 weeks provided by the Working Time Directive (Directive) does not need to be carried over into the next year where the worker was not able to use the holiday due to sickness.

In this case the employees (one from the health sector and the other from the freight transport sector) had been unwell and incapacitated by illness during a period of annual leave. They asked their respective employers if they could carry over the holiday they were unable to enjoy, due to sickness, into the next year. Their requests were denied.

The employees brought claims under EU law arguing that the wording under the Charter of Fundamental Rights stating “every worker has the right to … an annual period of paid leave” should be read in conjunction with case law on sick leave and annual leave, to ensure that the rules on carrying over 4 weeks under the Directive should also apply to annual leave under national law or collective agreements.

The Court concluded that in such circumstances any right to paid annual leave that exceeds the minimum 4-week period is governed exclusively by national law, in particular, the conditions granting additional days of leave. Meaning the power to allow (or not allow) further annual leave where, during a period of annual leave a worker has been incapable of working due to illness, was for the Member State to decide. The ECJ stated that in such a situation rights to annual leave beyond the minimum requirements of the Directive, are not governed by that Directive but instead by national law and the Charter of Fundamental Rights does not change the position.

Employers will be pleased to hear that this ECJ decision confirms that they can continue to limit carry over of holiday in cases of sickness absence to the 4 weeks under the Directive. This follows a decision made by the EAT in the UK on a similar set of facts in Sood Enterprises Ltd v Healy.