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Worker On Sick Leave Can Carry Forward Annual Leave To The Next Holiday Year

The European Court of Justice (ECJ) has held that a worker who is prevented from taking scheduled annual leave because they are off work on sick leave is entitled to take the holiday at a different time and carry any untaken holiday forward into the next holiday year if necessary.

In the recent case of Sobczyszyn v Szkoła Podstawowa w Rzeplinie, the ECJ considered the case of a Polish teacher, Ms. Sobczyszyn, who was on sick leave between 28 March and 18 November 2011. Ms. Sobczyszyn was entitled to 35 days’ annual year each leave under Polish law. Ms. Sobczyszyn had been scheduled to take her annual leave between 1 and 31 July 2011, but was off work on sick leave. 

In 2012, having returned to work, Ms. Sobczyszyn claimed that she was entitled to the annual leave that she had accrued in 2011 but had been unable to take due to her sick leave. The school argued that her entitlement had been “used up” because she was on sick leave for the whole period that she was due to be on holiday. 

The Polish Court referred the issue to the ECJ. The ECJ held that a national law or practice which prevents a worker from carrying over unused annual leave at the end of the year where the worker has been on sick leave for all or part of the leave year (and not therefore had the opportunity to take their scheduled holiday), is incompatible with the Working Time Directive. 

This is not the first ECJ case on the relationship between annual leave and sick leave. In the combined cases of Stringer and others v HM Revenue & Customs and Schultz-Hoff v Deutsche Rentenversicherung Bund, the ECJ held that:

•    Workers continue to accrue holiday entitlement during sick leave
•    Member states can choose to allow the worker to either take paid annual leave during a period of sickness absence (even if the worker is on unpaid sick leave), or take the leave after they have returned to work, even if this means carrying the untaken holiday forward into the next holiday year

The Working Time Regulations (WTR) which implement the WTD, expressly rule out the carry-over of statutory holiday to the next leave year. In order to comply with EU case law, UK Courts must therefore interpret the WTR as allowing a worker to either take or be paid for their accrued holiday entitlement where they have been on long term sick leave. 

It is unlikely (particularly given the recent Brexit result) that the government will seek to amend the WTR any time soon to ensure that they are compatible with the ECJ’s view in relation to the carry-over of annual leave. In the meantime, Courts must interpret the WTR purposively to give effect to the ECJ’s intention. 

This bulletin is for general guidance purposes only and should not be used for any other purpose.

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