Confirmation that workers prevented from taking holiday entitlement due to sickness absence must be allowed to ‘carry it over’

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As the holiday season starts, the ECJ has provided a timely reminder in the case of Sobczyszyn v Szkola Podstawowa w Rzeplinie that workers who are prevented from taking their four weeks’ paid holiday entitlement derived from the European Working Time Directive (‘Euro leave’) due to sickness absence are entitled to carry it forward - if necessary into a subsequent leave year.

Case facts

Ms Sobczyszyn was a teacher in Poland whose employment was subject to the rules of the Polish National Teachers’ Charter (‘the Charter’). By virtue of the Charter she was entitled to 35 days holiday each year. The Charter also provided ‘a right’ for individuals with 7 or more years’ employment to take a period of paid ‘convalescence leave’ for up to 12 months. Ms Sobczyszyn went on an extended period of convalescence leave from March 2011 to November 2011. In April 2012, following her return to work, Ms Sobczyszyn applied to take annual leave that she had accrued in 2011 but not taken. Her employer refused. It argued that under the terms of the Charter annual leave she had been scheduled to take in July 2011 had effectively been ‘used up’ by virtue of her being absent on paid convalescence leave at that time.

Ms Soncyszyn brought a claim in the Polish courts. The Polish courts referred to the ECJ on the question of whether the Working Time Directive (WTD) precluded the operation of the Charter in this manner.

ECJ decision

Confirming principles established in previous ECJ cases (see below), the ECJ found that a national law or practice which prevents a worker from carrying over unused Euro leave at the end of a relevant leave year, due to their being absent on ‘another form’ of leave, which is not for the same purpose as Euro leave is incompatible with the WTD. The ECJ previously confirmed in the case of ANGED that the purpose of Euro leave is ‘rest, relaxation or leisure’.

The ECJ found that ‘convalescence leave’ under the Charter was akin to sickness leave. The Charter itself stated that convalescence leave was to allow an individual to ‘follow a course of treatment prescribed by a doctor’. Therefore, if convalescence leave prevented a worker from taking their Euro leave entitlement in the applicable leave year, they must be allowed to carry it over to a subsequent leave year.

Comment

Of course this is not the first ECJ case focusing on the relationship between annual leave and sick leave.

Pereda previously established that a worker who falls sick during a period of previously scheduled annual leave has, subject to proper notification, the right to reschedule this leave to a different time.

In Stringer and others, the ECJ confirmed that:

  • Workers continue to accrue annual leave entitlement during sick leave, and
  • EU member states have the choice to allow (although not force) workers to either take paid annual leave during a period of sickness absence, (even if such sick leave is unpaid), or take such leave after they have returned to work.

The ECJ’s decision in Sobczyszyn is yet further endorsement of the fundamental status in EU law of a worker’s entitlement to a ‘genuine’ period of paid holiday.

The fact that holiday might have been pre-scheduled or pre-booked makes no difference: if a worker’s absence on ‘another form of leave’ at such time prevents them from taking their full Euro leave entitlement, they must be able to use it at a later date - even if this means taking it in a subsequent leave year.

The Employment Appeal Tribunal did provide some reassurance to UK employers in the case of Plumb v Duncan Print Group Ltd (see our previous briefing) when it found that the ‘entitlement’ to carry over accrued Euro leave was limited to 18 months after the end of the relevant holiday year. (This backstop period is consistent with periods allowed in ECJ judgements).

The Working Time Regulations (‘WTR’), which implement the WTD in the UK, give all UK workers a statutory entitlement to 5.6 weeks' paid holiday each year. This is made up their four week Euro leave entitlement plus an additional 1.6 weeks. Many companies also provide additional contractual holiday on top of this statutory entitlement.

The WTRs expressly rule out the carry-over of statutory holiday to the next leave year, so UK courts and tribunals have to effectively ignore this provision of the WTR when considering the Euro leave entitlement of workers who have been on long term sick leave/absence in order to give effect to the WTD and applicable ECJ decisions on its operation.

However, these ECJ decisions are not binding in relation to the operation of the additional 1.6 weeks statutory holiday entitlement derived solely from the WTR, nor in respect of any additional contractual holiday allowance. Complexity in establishing the precise order in which these ‘differently derived’ holiday entitlements are taken, (it’s not specified in any regulation), has the knock on effect of making it difficult to determine exactly which holiday is potentially open for re-scheduling due to sickness, and which not. Provision can be made in respect of this in a worker’s contract, but for ease of operation many employers elect to treat ‘all holiday’ entitlement, wherever derived, in the same manner.

‘Other forms of leave’ - sabbaticals?

Another interesting aspect of the ECJ’s judgement in Sobczyszyn was its clear statement that leave taken for purposes other than ‘rest, relaxation and leisure’ will not satisfy the minimum Euro leave requirements. The ECJ went on to confirm that it was up to national courts to determine ‘the purpose of a particular form of leave’.

The fact that it is the ‘purpose’ of leave which determines whether it can be treated as satisfying a worker’s Euro leave entitlement, or whether Euro leave should be taken ‘in addition’ to such leave, is likely to be of particular interest to those employers who make provision for other forms of extended paid leave, which do not relate to a worker’s health. For example, what about sabbaticals? If the purpose of a sabbatical is purely rest and relaxation, then it would meet the ‘purpose’ requirements for annual leave under the WTD and there would be no ‘additional’ entitlement to Euro leave. However, what about sabbaticals taken for the purpose of study, even study which doesn’t necessarily benefit an employer but is rather for a worker’s personal fulfilment/ambition? If holiday is not taken during such a sabbatical, would an employee be entitled to take Euro leave at a later date, even if this meant rolling it forward to another leave year? According to Sobczyszyn, this would depend on how a UK court or tribunal ultimate determined the ‘purpose’ of such leave.

Holiday entitlement and Brexit?

In light of the UK’s EU referendum result, it is unlikely that the government will be in any hurry to resurrect plans to amend the provisions of the WTR to ensure compatibility with ECJ judgements on the issue of carry-over of Euro leave. In fact, the WTR have been identified as one area of employment law that might be up for re-examination and reform post Brexit. Whether this is the case, and what scope for change there might be, will be heavily dependent on the nature of our on-going relationship with the EU post exit. There is some way to go yet before this becomes clear.

For now at least, the UK remains subject to the WTD and bound by the decisions of the ECJ in relation to it. So, as summer finally seems to be here, members should ensure that they continue to operate their holiday policies and procedures in compliance with the current legal position.

EEF Support

Members can access further information on holiday and other leave entitlements via the EEF website , which also contains helpful model documents and policies.

Employers concerned about the impact of Brexit on their HR procedures and who want to explore options for ‘Brexit-proofing’ their HR functions in preparation for life outside the EU, should attend one of our national seminars - What does Brexit mean for HR?

For more information or to book, click here.

Author

Principal Legal Adviser

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