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20th July 2012

ECJ Confirms Position Regarding Illness During Annual Leave

In the case of Asociación Nacional de Grandes Empresas de Distribución v Federación de Asociaciones Sindicales and others, the European Court of Justice (ECJ) considered whether a worker who falls ill during a period of statutory annual leave is able to take that leave at a later date.

It is already well established by Article 7(1) of the Working Time Directive (the Directive) that member states must ensure that every worker is entitled to paid annual leave of at least four weeks. This is implemented in Great Britain by the Working Time Regulations 1998, which give workers the right to 5.6 weeks’ paid leave per year.

Further to the above, in the case of Pereda v Madrid Movilidad SA (2009), the ECJ had previously held that, where a worker’s prearranged statutory annual leave coincided with a period of sickness absence, the Directive required that a worker has the option to designate an alternative period for the exercise of their annual leave entitlement.  To this end, a worker could carry their entitlement over to the next leave year if required.  It is worth noting that although the Working Time Regulations (which apply within Great Britain) do not appear to implement the Directive’s requirements in this regard, courts and tribunals have recently tended to interpret the regulations creatively to give effect to a workers’ EU-derived rights.

In the Pereda case, the worker concerned went off sick before a planned period of statutory annual leave commenced. However, in the case of Asociación Nacional de Grandes Empresas de Distribución v Federación de Asociaciones Sindicales and others, the ECJ had to consider whether workers who fell ill during a period of statutory annual leave should be entitled to reschedule the part of the planned leave which coincided with their unfitness for work.

In reaching its decision, the ECJ stated that the entitlement of every worker to paid annual leave is a particularly important principle of EU social law from which there could be no derogations.  It went on to say that the purpose of paid annual leave is to enable a worker to enjoy a period of relaxation and leisure. On the other hand, the purpose of sick leave is to enable a worker to recover from an illness that has made him/her unfit for work.

Building on its previous decision in the case of Pereda (as outlined above) the ECJ stated that it would be arbitrary, and contrary to the purpose of statutory annual leave, to only allow a worker to reschedule a period of leave if they are already unfit when the period of leave commences.  Therefore, the Court concluded that the principle of taking leave at a later date should also apply when a worker becomes ill during a period of statutory annual leave.  In such a case, the new period of annual leave, which would correspond “to the duration of the overlap between the period of annual leave initially scheduled and the period of sick leave”, may be taken outside the relevant leave year if necessary.

Following concerns that the Working Time Regulations do not implement the Directive’s requirements as set out in the case of Pereda, the government consulted on amending the regulations. Interestingly, the government’s proposals (which were published before the ECJ’s most recent decision) are compliant with the decision reached by the ECJ in Asociación Nacional de Grandes Empresas de Distribución  v Federación de Asociaciones Sindicales  and others as outlined above.  To this end, the government’s consultation paper states that:

“…where a worker falls sick during scheduled annual leave he will be able to reschedule the annual leave at a later date, including carrying it over if it is not possible to reschedule in the current leave year.”

The government has yet to publish a formal response to the proposals put forward by the consultation, however until such time as the Working Time Regulations are amended courts and tribunals are more likely than not to interpret the regulations in line with the ECJ’s recent decisions.

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