188: Advocate General’s view on limiting carry over of holiday for sick employees

UK workers are entitled to four weeks’ annual leave under the EU Working Time Directive and a further 1.6 weeks’ leave under the Working Time Regulations 1998.

Case law has established that workers on long-term sickness absence can carry over the 20 days’ EU leave to the next holiday year. However, in the 2012 case of Sood Enterprises Ltd v Healy, the Employment Appeal Tribunal (EAT) held that, unless the employer has agreed otherwise, there is no requirement to allow workers to carry over the 1.6 weeks’ additional leave.

In two conjoined cases from Finland, TSN v Hyvinvointialan liitto ry and another case, the Advocate General has recently given an Opinion confirming that the EU Charter of Fundamental Rights, read together with the Working Time Directive, allows member states to have national laws limiting carry over of holiday in the event of sickness to the four weeks’ leave under the directive. The employees had argued that the rules on carrying over annual leave in the event of sickness should also apply to holiday in excess of the four weeks provided under national law or collective agreements. In the Advocate General’s view, provided that the minimum four weeks’ paid leave under the directive is protected, member states can set their own rules on the granting, carrying over and loss of paid annual leave over and above that minimum.

If the ECJ follows the Advocate General’s Opinion, as it normally does but is not obliged to do, this will confirm that the EAT’s decision in Sood Enterprises Ltd v Healy is correct. This means that employers would not have to allow an employee who has been unable to take holiday due to sickness to carry over the additional 1.6 weeks’ under the Working Time Regulations.