EU court: Workers sick on leave can get extra time off

Sick girl in bed - file pic Workers' rights are protected by the EU Charter of Fundamental Rights

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Workers who fall sick during their annual leave are entitled to take corresponding paid leave at a later date, the EU's top court has ruled.

The European Court of Justice ruling is legally binding throughout the EU.

Thursday's ruling was prompted by a Spanish trade union case against a group of department stores.

"The right to paid annual leave cannot be interpreted restrictively," the court says. The UK does not have an opt-out in this area of EU labour law.

The court in Luxembourg said the EU Working Time Directive grants workers a right to at least four weeks' paid annual leave "even where such leave coincides with periods of sick leave".

The ECJ says "the point at which the temporary incapacity arose is irrelevant".

"Consequently, a worker is entitled to take paid annual leave, which coincides with a period of sick leave, at a later point in time, irrespective of the point at which the incapacity for work arose."

According to an earlier ECJ ruling, workers who fall sick before a period of annual leave can also reschedule that leave period so that it does not clash with their sick leave.

The UK's opt-out from the Working Time Directive only applies to the directive's clause setting a 48-hour limit on the working week.

The UK government says "no-one can opt out of any other part of the directive".

The UK and at least 14 other countries use the opt-out, which enables workers voluntarily to work more than 48 hours a week.

Carrying leave over

An EU source told the BBC that the ECJ ruling has full, immediate effect EU-wide, regardless of the type or size of employer.

Workers who believe their employer has infringed their right to paid annual leave can seek justice in their national courts.

Infringement cases against employers who violate the directive can also be brought by the European Commission or national governments.

Commenting on Thursday's ruling the Confederation of British Industry said that "as a result of earlier ECJ judgments, this change has already happened in the UK, bringing along headaches for employers".

Guy Bailey, CBI Head of Employment and Employee Relations, said that "with the rules currently under discussion again in Brussels, the CBI would like to see the judgments reversed, so that the directive is focused on the health and safety of the workforce, as originally intended".

The Working Time Directive has been hotly debated in the EU for years. The European Parliament has tried to get the opt-out removed, challenging the UK position.

The UK's Federation of Small Businesses urged the UK government on Thursday to "avoid implementation of any ECJ ruling on annual leave and sick leave for as long as possible, given the ongoing negotiations by the social partners on the Working Time Directive".

The business group said changing UK law in this area again "would be unhelpful, confusing and add burdens for small businesses, which at this time they can ill afford".

In cases where workers fall sick towards the end of the year, and are unable to take all of their annual leave, they can under EU law carry over their unused leave into the next accounting period.

The ECJ has also ruled that the long-term sick have the right to accumulate at least a year of unused annual leave. But the ECJ says the amount is not open-ended and member states can set an upper limit.


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  • rate this

    Comment number 169.

    This seems like a scivers charter, but, conversely is fair enough. Unfortunately, if you find you can't get a doctors appointment for weeks on end, and do fall sick on your holiday you have no way to prove you were ill, and, if your employer is looking for a way to make life hard for you, you would also have no defense if you were accused of sciving!

  • rate this

    Comment number 168.

    Crazy world. I dont get paid sick leave so sometimes ask if i can use my holiday to cover them. Cant afford not to be paid.

  • rate this

    Comment number 167.

    As a self-employed shopkeeper, I offer myself as many sick days as I want.
    I don't get paid for them, though, so I take about one every two years.
    I don't get paid for holidays, either, so I restrict myself there too.

  • rate this

    Comment number 166.

    Judging by the comments of some on here who claim they are employers they must be pretty bad at selecting and motivating staff and if they cant weigh up whether its best to use people or machines I dont think they will be in business for too long.

  • rate this

    Comment number 165.

    The probability of falling ill during ones' holiday is about 8% when compared to falling ill whilst at work, so let's keep things in perspective. In any case this impinges on an employee's sick leave entitlement. If people want to abuse the system thay can always pretend they are unwell irrespective of when this is done.

  • rate this

    Comment number 164.

    How can this be policed? Currently employees can self certifictate (ie no doctors note required) for up to a week. What is to stop anyone coming back from a fortnight on the beach and claming they were in bed for five days?
    Will only lead to more legislation and the need for medical certificates for all time off.

  • rate this

    Comment number 163.

    Employers I know allow A/L to be credited, if you produce a doctor's note. And rightly so.

  • rate this

    Comment number 162.

    What's new?

    Over the last 30 years I have worked in both private and public sector jobs (mostly private sector) and have always had the option to claim back holiday time if I fell ill while on holiday, provided I could produce a doctor's note to confirm the illness.

    Most companies would not allow this to be done under self-certification for obvious reasons, but are fine with a doctors note.

  • rate this

    Comment number 161.

    Can just see it, some one on A/L with a slightly dicky tummy because of over indulgence trying to claim their leave back. Kind of understand it if you have to have a fixed leave period but if you can choose when to have leave, it is far to open to abuse.

  • rate this

    Comment number 160.

    I'm all for workers rights but there have to be some conditions on when the leave can be re-credited or as I worker I wouldn't feel right about it.
    If a guy got alcohol poisoning from boozing on holiday or was injured snowboarding, should his employer have to take responsibility for that?
    Employer and employee should work these things out sensibly according to the situation.

  • rate this

    Comment number 159.

    People who claim they are sick, on a regular basis, should be sacked; you cannot expect an employer to keep paying someone who is too ill to be useful to the company.

  • rate this

    Comment number 158.

    Madness.It's nothing to do with the employer ( of which I am one) .Tough luck.I am faced with an Employee with lung cancer ;signed off for 3 months who is accruing holiday entitlement!! I took over an Insolvent company in 2010 and its staff 1 of whom was on Maternity leave and at the time ,on holiday in South Africa . When I had to make her redundant I had to pay her for 24 days of accrued leave.

  • rate this

    Comment number 157.

    Just what the EU economy needs att this time.
    More idle leftist making up ideas to redistibute wealth which is not there
    Don't they understand thats why they're in such big mess, listening to the looney left who have the head firmly in the sand and their own backside

  • rate this

    Comment number 156.

    Whilst I am on holiday at the all-exclusive, can I count each day I suffer a severe hangover as a sick-day and claim holiday back in lieu?

  • rate this

    Comment number 155.

    Some of the comments and markings on hys are really flushing out the skivers today.
    2 workers have a cold.
    Worker 1 - Oh no,I'm going to feel lousy at work today
    Worker 2 - Oh great,an excuse for a doctor's note. Wonder which one you are.

  • rate this

    Comment number 154.

    Hard workers further subside the weak.

    If this passes, it must be made easier for employees to fire people. There's lots of people taking employees for a ride.

  • rate this

    Comment number 153.

    This rule already applies in my workplace and nobody takes advantage of it - perhaps because sickness absence is properly managed, regardless of when it takes place.

    It baffles me that some of the opinion here is against this ruling. Aren't the majority of workers under enough pressure already?

  • rate this

    Comment number 152.

    @Pete.. Most wages are not regulated by Government. Most wages are determined by the competition between organisations (small or large) for the skills, the people have. In addition, it is wholly irrelevent whether a particular job is simple or not. Cleaners salaries have risen to quite a high level in some areas as a result of the higher wages required to lure them away from other opportunities.

  • rate this

    Comment number 151.

    I once caught an ear infection just before going on holiday. I wasn't aware and it didn't bother me much but swimming on the first day exacerbated it and I became quite ill. I went to a local doctor who prescribed some drugs and within a couple of days I was better. I was practically deaf for a few days though, which, with 2 young children, was bliss. Didn’t occur to me to ask time back.

  • rate this

    Comment number 150.

    lets see the NHS stats for this dodge/pay increase


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