Sickness during annual leave: must be carried forward to following year

The European Court of Justice has extended the rights workers have where they have been sick whilst on holiday. If they have not been able to take it during the current holiday year, they should be allowed to carry holiday forward to the next leave year. Any country that does not permit this would be in breach of the EU Working Time Directive.

Background

Although this case relates to a teacher in Poland, and Polish employment law, and is at this stage a preliminary view of the Advocate General, it is relevant in the UK because our legislation implementing the Working Time Directive (Working Time Regulations 1998) does not allow carry-over of annual leave from one year to the next. Also, this decision goes further than the right to designate time off either as sickness or annual leave resulting from the decision in Pereda, which we have previously reported on.

The European Court was particularly influenced by the heavy store set by European legislation on annual leave and its health and safety benefits. The health and safety significance of rest remains, said the Court, if it is taken at a later time.

Implications

This case highlights a further incompatibility between the UK’s legislation and EU law. It will now be open to Tribunals to re-write legislation as they have done before. Certainly, given the political climate at the moment, it is unlikely that the government will act to address the issue any time soon.

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