European Court of Justice confirm annual leave can be carried forward when off sick

The European Court of Justice ("ECJ") have reaffirmed their decision that scheduled annual leave can be carried forward when a worker is prevented from taking this due to sickness absence. This was in the recent case of Sobczyszyn v Szkola Podstawowa x Rzeplinie C-178/15. 


Article 7 of the Working Time Directive (2003/88/EC) provides that 4 weeks paid annual leave is a fundamental principle under EU law and member states shall take the measures necessary to ensure that every worker receives this. 

This is implemented by regulations 13 to 16 of the Working Time Regulations 1998 ("WTR 1998"). 

The ECJ has considered the rights of workers in relation to their annual leave when off sick in some earlier cases and established the following principles:

  • Workers continue to accrue annual leave entitlement during sick leave (Stringer and others v HMRC C-520/06)
  • If a worker''s scheduled annual leave coincides with sick leave, the worker can designate a different time to take the annual leave (Pereda v Madrid Movilidad SA C-277/08). 
  • If a worker becomes sick during a period of annual leave, the worker can reschedule the annual leave on recovery (ANGED v FASGA and others C-78/11).


In the current case,Ms Sobczyszyn, a primary school teacher, was on sick leave between  28 March and 18 November 2011.  She claimed that she was entitled to annual leave accrued in 2011 but had been unable to take due to her sick leave. The school refused and argued that Ms Sobczyszyn should have taken her annual leave earlier that year and her entitlement had been used up by her sick leave which extended over the 2011 annual leave period. Ms Sobczyszyn then brought a claim in the Polish courts who referred the matter to the ECJ for a ruling. 


The ECJ held that a national law or practice which prevents a worker from carrying over unused annual leave where the worker has 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, is incompatible with Article 7 of the Working Time Directive. The national courts would need to be satisfied that the annual leave and sick leave have different purposes. 


The implication from the ECJ''s decision is that it should make no difference whether the annual leave has actually been booked or scheduled, the worker will still have been prevented from exercising their right to take annual leave under Article 7 because of their sickness. 

This case again highlights that regulation 13(9) of the WTR 1998 is incompatible with the ECJ''s view that annual leave can be carried over in cases of sickness absence in order to protect worker''s Article 7 rights. Regulation 13(9) itself provides that statutory annual leave entitlement can only be taken in the leave year to which it relates. We await to see if the government will address this issue any time soon.  

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