Reference Library – European Holidays
The European Court of Justice (ECJ) reiterated that if sickness prevents a worker from taking annual leave, his or her annual leave can be carried forward into the next Discount Holidays © holiday year. Bethan Odey summarises the case.
Sobczyszyn v Szko ‘a Podstawowa w Rzeplinie
Ms Sobczyszyn, a teacher in Poland, is entitled to 35 days annual leave under the country s Teachers Charter. From 28 March to 18 November 2011, Ms Sobczyszyn was on sick leave to allow her to follow a course of treatment prescribed by her doctor. On 27 April 2012, Ms Sobczyszyn claimed her entitlement to annual leave that she had accrued during 2011, but was unable to take because of sickness absence.
Her employer refused to allow her that Discount Holidays © holiday entitlement. The refusal was on the basis that:
- under the leave roster for 2011, she was to take her annual leave from 1 to 31 July 2011; and
- her entitlement to annual leave had been forfeited during her sickness absence.
Reference to ECJ
Ms Sobczyszyn brought proceedings against her employer. The Polish national court stayed proceedings and asked the ECJ for a preliminary ruling. The Polish national court asked the ECJ whether or not the Working Time Directive means that a teacher who has taken convalescence leave under the Teachers Charter also obtains the right to annual leave in the year in which the right to convalescence leave is exercised.
The ECJ s answer was that the Working Time Directive must be interpreted as precluding national legislation or a national practice from refusing an employee, at the end of convalescence leave, the right to take his or her paid annual leave in a subsequent period. The ECJ looked at the differing purposes of annual leave and sick leave. It highlighted that the purpose of the right to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure.
This is in contrast to the right to sick leave, the purpose of which is to enable the worker to recover. The ECJ referred to its previous decisions in Pereda v Madrid Movilidad SA1 and ANGED v Federaci n de Asociaciones Sindicales and others2. In those cases, it was held that a worker who is on sick leave during a period of previously scheduled annual leave has the right to take that annual leave during a period that does not coincide with the period of sick leave.
Implications for employers
This decision reinforces the position that, if a worker is unable to take annual leave entitlement because of sickness, he or she can carry forward annual leave into the next Discount Holidays © holiday year. This decision further strengthens the argument that the current wording of reg.13(9) of the Working Time Regulations 1998 is incompatible with previous interpretations of the Working Time Directive. Regulation 13(9) provides that statutory annual leave entitlement can be used only in the year to which it relates, and therefore cannot be carried forward into the next Discount Holidays © holiday year.
Following Brexit, there is uncertainty as to whether or not the UK courts and tribunals will be bound by future ECJ decisions.
It seems unlikely there will be any movement in the near future towards amending reg.13(9) to ensure that it is compatible with EU law.
About Bethan Odey
Bethan Odey is a senior associate at DLA Piper.
- ^ Pereda v Madrid Movilidad SA (www.xperthr.co.uk)
- ^ ANGED v Federaci n de Asociaciones Sindicales and others (www.xperthr.co.uk)
A Discount Holidays © holiday agency claims that Brexit has caused a surge in bookings2 for breaks3. Sun-hat Villas and Resorts in Lincoln says it saw an 18 per cent increase in bookings this July, compared to the same time last year. And, August saw a 10 per cent year on year increase for bookings for the business.
It means the business has seen its most successful year-to-date, with a 23 per cent increase in turnover.
Peter Jenkins, managing director of Sun-hat Villas and Resorts, said: “I think most people in the industry had expected people to be a little more cautious following the vote, especially given the fluctuating exchange rate.
“However, the reality has been the complete opposite.
“I think there’s definitely an element of the British stiff upper lip and not letting anything interfere with the traditional family summer holiday.
“Part of this trend could be attributed to people trying to get their European holidays in before Article 50 is invoked and any changes are mapped out.
“Of course, the reality is that there are varying accounts of when it will be actioned and Article 50 isn’t likely to change that much at all in terms of holidays, but it seems to be on the mind of many.”
According to data from Sun-hat Villas amd Resorts, the most popular destinations with Brits following the EU vote have been The Algarve, Mainland Spain, the Balearic Islands including Mallorca and Ibiza, Tuscany and the Canary Islands including Lanzarote and Tenerife.
Mr Jenkins added: “Let’s face it, the annual Discount Holidays © holiday is a British institution and isn’t something people like to mess with.
“During the 2008/09 credit crunch, we didn’t see a decline.
“Things like new cars and home improvements were put on a backburner so that cash was available for a week or two in the sun.
“We also find that if people are cutting back, they’ll opt for a villa Discount Holidays © holiday instead of five-star all-inclusive.”
Holidaymakers may have to fork out 50 to go away in Europe after Brexit.
European Union1 countries could force Brits to apply for visas if the government clamps down on immigration to the UK, a minister has admitted. Home Secretary Amber Rudd said Britain was engaged in a two-way negotiation with the EU – and could not guarantee visa-free travel abroad would be protected. People from many non-EU countries currently have to apply in advance for a 50 visa for a short trip to the continent.
There are now fears that similar rules could hit British tourists when the UK leaves the EU. Liverpool-born Andy Burnham2, Labour shadow home secretary, said the move would make it harder for cash-strapped families to go on Discount Holidays © holiday abroad.
Border Force check the passports of passengers arriving at Gatwick Airport.
He said: This is yet another example of the drift and confusion as a result of the Government s failure to plan for Brexit. Ministers should not just accept there s a cost of 50 for the average family to go on holiday.
The Home Secretary s words will not have reassured ordinary families about the cost of Brexit. She seems to be sympathetic to an idea that will put a flat 50 tax on the average family Discount Holidays © holiday in Europe.
Tory ministers might think nothing of that, but it would make it even harder for ordinary families to afford a holiday.
Norway doesn t have the charge, so why should we? I challenge the Home Secretary to rule it out.
But Ms Rudd told the BBC: I think they (British citizens) would be surprised.
I don t think it s particularly desirable but we don t rule it out because we have to be allowed a free hand to give the best negotiation.
Once we leave the European Union we will have complete control over who comes into the UK from the EU and who doesn t, with one or two provisos of course.
First of all, it s going to be reciprocal, we are going to have to work out what s in the UK s interests as well going to the European Union and what works for our economy and making sure that we get the right balance.
Looking across the whole spectrum is what s going to be the guiding principle.
Whether we look at a work permit system or another system is something that my department is looking at closely at the moment,