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 189.

    I used to think that workers have too many facilities but when it happens that you get seriously ill (a brain stroke for example) and looses your own job because you remain at home for 6 months (this happens in Italy)....this is hard to accept..we need much more balance and justice in working directives..I would rather loose my leave than loose my own job because of a serious, long-term illness

  • rate this

    Comment number 188.

    Perhaps being ill during your annual leave is a good idea

    It will give you a good rest in bed and save you from spending your savings on a foreign holiday. It may even preserve your marriage. Make or break holidays are well known for breaking up families

  • rate this

    Comment number 187.

    Irrespective of the law change, we all know which of our colleagues are workers and which are shirkers. The same way we know who will choose to abuse this new ruling and who won't.

  • rate this

    Comment number 186.

    Agree 172,the ignorance of some on this HYS astounds me.My brother can no longer work. Someone came to work with flu, he caught it and became pnuemonia,so strong that it damaged his lungs. He has other conditions too, but getting that sick was the last straw. We almost lost him because of some idiot CHOOSING to come to work. If ill, STAY HOME.Remember that the shoe can be on the other foot!

  • rate this

    Comment number 185.

    Does that mean if i fall sick on Sunday, I get another day off in lieu of my sunday? a bit ridiculous!!!

  • rate this

    Comment number 184.

    we are fast becoming a nation of begrudgers and the laughing stock of Europe.

  • rate this

    Comment number 183.

    Businesses can only survive in a globally competitive market if they pay workers for the results of their work. Paying them for being on holiday / sick or to have children may be attractive from a socialist point of view. It is also daft because it creates massive unemployment which in turn generates a huge tax burden. Answer:-make everyone self-employed and let them contract for their services

  • rate this

    Comment number 182.


    "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."

    As my then boss said to me many years ago , this is the life you have chosen

  • rate this

    Comment number 181.

    So then, can we now sack those who abuse this new system? Or will they be able to sue for unfair dismissal or whatever else their "Union" can come up with!? Can we have a bit of protection for Employers as well now please?

  • rate this

    Comment number 180.

    After reading some of the comments on this page, I shudder to think what kind of world we would live in if they took over.

    It is perfectly reasonable to differentiate and allow workers to have sick leave and claim back their annual leave. After all, you don't take sick leave to have a holiday and you don't take annual leave to be off sick, simple as.

  • rate this

    Comment number 179.

    @158.David Peddy

    Seriously, what is wrong with you?

  • rate this

    Comment number 178.

    Why are people protecting employers so much?? A few years ago, I had Neurosurgery and took two weeks off work - I went back too quickly and ended up with another week off. I got "released" for poor time keeping.

    Another employee in the same company had a meeting due to absence (due to cancer) The first words spoken at this meeting were "If you want to keep your job" ... Great Employer!! NOT!

  • rate this

    Comment number 177.

    @ 99. Martyn 29 MINUTES AGO

    "Please, will the pathetic anti-EU bleaters quit digging their hole?"

    Are you telling me there are still people who think the EU is a good idea? I would have thought natural selection had taken care of that already.

  • rate this

    Comment number 176.

    Statutory sick pay requires a note for an absence of 4 or more days and this is adopted as policy by most companies (Doctors wont write a note for shorter periods anyway).

    So book 4 day breaks, claim back 3 days per break and legally increase paid holiday to 100 days!

  • rate this

    Comment number 175.

    We Brit's are trying to cut red tape while the silly euro knobs are try to add more on...referendum time is looming I think.

  • rate this

    Comment number 174.

    I can see both sides here. I could have Cancelled my Easter Break as I was Ill, but didn't as my work paid me full pay when I am not entitled to any. So I lost my Holiday Days. However, other than the later Public Holidays this year I have only had one day off proper this year. I am worn out and counting down to my July Holiday. The answers to the problem, I will leave up to you

  • rate this

    Comment number 173.

    I don't see how this could be abused by people in professional type jobs (programmer, designer etc) since the system already allows you to take 2 years off work, paid for back pain; I know since my friends boss has done just that for the last 2 years...I do see how it could be abused by people who don't get paid sick leave however...

  • rate this

    Comment number 172.

    159: Yet according to Atos and DWP, the same worker is well enough to work and so cannot get incapacity benefits. Either workers need strong rights, or the unemployed need strong rights. Weak rights for both puts people who are unlucky enough to be ill into poverty.

    158: Oh, poor you, unable to impose dismissal and poverty on someone with LUNG CANCER. Your employee gets my sympathy, not you.

  • rate this

    Comment number 171.

    @ FM (126)

    This won't change that - if a person is off sick the company only has to conform to SSP rules, which has a 3 day qualifying period, so no pay for the first 3 days off, and even then only about £16 per day after that. Although many companys have occupational sick pay schemes, companies don't have to have one

  • rate this

    Comment number 170.

    When you go abroad on holiday, if you get sick for a couple of days the tour operator/hotel doesn't extend your stay. It's a case of bad luck.

    This is yet further evidence of the EU imposing silly and impractical rules based on knee-jerk reactions. This kind of ruling is wide open to being taken advantage of by the same types who throw sickies.


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