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 689.

    At my place of work we're allowed no more than two sick days per month and any sickness over 1 day requires a doctor's note. Regardless of whether you have a doctor's note or not, sickness beyond the second day is counted as annual leave. My employer also counts weekends as 'discretionary leave' (since all the staff are paid a "full month's" salary) and consequently any overtime is unpaid.

  • rate this

    Comment number 688.

    In Gold I Trust Your nom de plume says it all really. Please be so kind to inform us the name of your company so that all other fair minded people can avoid you and your products. Your unfortunate staff I wager spend their free time if any job searching. It is comments such as yours which me make me totally ashamed to be British.

  • rate this

    Comment number 687.

    Shalott You probably are in shock, but then employment law in the US is at just about at the first quarter of the 19th century. I am actually amazed that anyone does a fair days work for a fair days pay in the land of the free. You obviously still think of employees as disposable chattels. Europeans mostly treat them as human beings, noticed the difference yet?

  • rate this

    Comment number 686.

    Fast Pete it is called a business cost. I have dealt with this for years. It is not a case of i didn't vote for this, it is a case that I should make allowances for this, otherwise your business is inefficient. There are more bad managers in the UK than bad workers. That is why we can't compete with Germany.

  • rate this

    Comment number 685.

    voice of reason The New York Stcok Exchange own Moodys, but that is not all the story. There is a suspicion that Moodys have leaked information to some of Americas Banks. There is also an investigation in process concerning the ratings of CDS and other financial instruments including re-packaged mortgages which were deemed to have "certain" asset values. The whole murky mess needs scrutiny!

  • rate this

    Comment number 684.

    Cornish Trebs Nothing whatsoever to do with modern up to date fair employment regulations. A lot to do with international banking dishonesty on an almost industrial scale. It is time that the law was also changed so that anyone working 37 hours a week should not require their income topped up by the taxpayer. A lot of poorly run businesses are subsidised by the taxpayer to make up wages.

  • rate this

    Comment number 683.

    RE 576 Chiptheduck With you on this one keep shouting, there,s more and more people from ALL political persuasions, each day waking up to the reality and realise the party that none of us can or ever could afford is nearly over! Bar the tears !! One can fool some of the people some of the time. Not all of them all of the time !!

  • rate this

    Comment number 682.


  • rate this

    Comment number 681.

    @mayfair69: Yeah, it's awful when workers want to be up-front and clear about the terms of employment, isn't it? Better to hire the dishonest ones who pretend to want to work 365 days a year until they receive their offer.

  • rate this

    Comment number 680.

    As an American, I am in shock and awe. My company is super generous by our standards - 3 weeks paid vacation plus another week of sick time, then another week every five years. But if you're sick when you happen to be off - too bad. We'd never DREAM of asking for make-up vacation time. And no employer would ever dream of offering it.

  • rate this

    Comment number 679.

    UK workers have had many legitimate rights squeezed by this government.Attacks on access to the law and tribunals with huge fees has been the latest and most shocking example. Europe yet again has ridden to the ordinary working person's rescue.Lauded "flexible"countries like China have high worker suicides and kill their workers in large numbers. Lunacy to want these working conditions here.

  • rate this

    Comment number 678.

    when interviewing for a job if interviewed person asks how much time off they will have. It is sure sign they will not get hired.

  • rate this

    Comment number 677.

    Re 671 Do tell ! Well spotted Ide like to bet you also spotted the banking crisis long before it happened ! You were not alone !!!

  • rate this

    Comment number 676.

    This has been the case for years. I represented a fellow trade union member on this subject about 2 years ago. We won! This is old news.

  • rate this

    Comment number 675.

    @671 Voice-of-Reason

    You stole my name, you thief, you worm, you yeller-bellied bum!
    I AM the Voice of Reason !!!!!!!

    And besides, your posts are a little better reasoned than mine....

  • rate this

    Comment number 674.

    Yes, but what boss will continue to employ someone who has taken extra holidays because they claim to have been sick on holiday?

  • rate this

    Comment number 673.

    @651 Rolf Harris
    If I have my facts right the Japanese had a post war culture of the "family corporation" that actually cared for its workers and their families.
    If I felt like I worked in one big happy family, then I too may feel inclined to relinquish holidays, but even though my company is first rate, it is not a "family" by a long chalk.
    Does anyone in UK give up their holiday entitlement?

  • rate this

    Comment number 672.

    665. Nick B

    How would an employer verify your sickness if your abroad for a two week vacation?
    He normally calls in the feds. If found guilty it's off to Guantanamo for another vaycashun with free watersports thrown in.

  • rate this

    Comment number 671.

    No wonder the EU is going to hell in a hand cart.
    Workers have to be cherished and wrapped in cotton wool while the whole EU becomes so uncompetitive compared to the rest of world.
    Enjoy your perks while you can, meanwhile the EU economies will continue to shrink, your net worth shrinks and your job becomes redundant!

  • rate this

    Comment number 670.

    A decent worker would use holiday time when ill if they want any money for the time doing nothing. Illness is no fault of employers. If anything only a state benefit should be paid to those unwell, or privately taken out insurance if you want more.


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