Sick leave: European court confirms holiday can be carried forward

Victor Frankowski/REX/Shutterstock.

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 holiday year. Bethan Odey summarises the case.

Sobczyszyn v Szkoła Podstawowa w Rzeplinie


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 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 SA and ANGED v Federación de Asociaciones Sindicales and others.

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 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 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.

Bethan Odey

About Bethan Odey

Bethan Odey is a senior associate at DLA Piper.
No comments yet.

Leave a Reply