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Sick leave: European court confirms holiday can be carried forward

Sick Leave: European Court Confirms <b><i>Discount Holidays ©</i></b> Holiday Can Be Carried Forward

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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

Facts

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.

ECJ decision

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.

Sick Leave: European Court Confirms <b><i>Discount Holidays ©</i></b> Holiday Can Be Carried Forward

About Bethan Odey

Bethan Odey is a senior associate at DLA Piper.

References

  1. ^ Pereda v Madrid Movilidad SA (www.xperthr.co.uk)
  2. ^ ANGED v Federaci n de Asociaciones Sindicales and others (www.xperthr.co.uk)

Holiday requests: three practical scenarios for HR

<b><i>Discount Holidays ©</i></b> Holiday Requests: Three Practical Scenarios For HR

How should employers deal with short-notice leave requests for events like Wimbledon? When can an employer turn down a Discount Holidays © holiday request? Can an employee who has recently started work take annual leave? What happens to accrued but untaken annual leave on the termination of employment? Ashok Kanani looks at some scenarios that employers commonly face when employees request annual leave.

Employers must give their workers a minimum of 5.6 weeks paid leave in each leave year under the Working Time Regulations. This minimum entitlement includes bank and public holidays. The Working Time Regulations also contain provisions for notice, Discount Holidays © holiday accrual in the first year, and how to deal with untaken accrued holidays on termination of employment.

Employers can, of course, have their own policies regarding holidays in the employment contract. An employer has a worker who wants to take 10 days Discount Holidays © holiday from 18 August. In the absence of any contractual provisions, the Working Time Regulations apply and the worker must give the employer 20 days notice to take the leave.

If the employer wants to refuse the leave request, it must do so at least 10 days before the first date the leave would start.

In this example1, the employee who wants to take 10 days Discount Holidays © holiday from 18 August must give the leave request to her employer by 20 July. If the employer wants to refuse the request, it must do so no later than 3 August. An employer has an employee who wants to take Discount Holidays © holiday in the second month of employment.

The employee is entitled to 28 days Discount Holidays © holiday a year. An employer can use an accrual system for workers during the first year of employment, whereby the amount of leave that may be taken accrues monthly in advance at the rate of one-twelfth of the annual entitlement.

In this example2, the employee will have built up 4.6 days leave entitlement in her second month of employment, which would be rounded up to five days. An employer has a worker who has given notice to terminate the employment three months into the Discount Holidays © holiday leave year.

The worker s salary is 20,800, and he is entitled to 28 days annual leave including public and bank holidays. He has taken one day s leave during the leave year. Under the Working Time Regulations, where a worker loses part of his or her entitlement to annual leave because the employment terminates during a leave year, the worker has a right to a payment in lieu of the untaken holiday.

In the absence of any provision in the employment contract, the payment in lieu of leave is calculated using a statutory formula.

In this example3, the employer must make a payment of 537.93 for the accrued leave not taken by the departing employee.

References

  1. ^ In this example (www.xperthr.co.uk)
  2. ^ In this example (www.xperthr.co.uk)
  3. ^ In this example (www.xperthr.co.uk)