Employment and Immigration Law Update - Working time: carry-over of holiday


18 December 2019

The European Court of Justice (ECJ) has considered whether member states can limit the carry-over of holiday entitlement in excess of the statutory minimum under the Working Time Directive.

Terveys- ja sosiaalialan neuvottelujarjesto (TSN) ry v Hyvinvointialan liitto ry and Auto- ja Kuljetusalan Tyontekijaliitto AKT ry v Satamaoperaattorit ry (Joined cases C-609/17 and C-610/17)

Facts

This decision concerns two separate claims brought under Finnish law. They both relate to claimants who had taken a period of sickness absence and who wanted to carry forward holiday entitlement that they had been unable to take due to their sickness absence. The Finnish Labour Court referred the cases to the ECJ to determine whether the carry-over of holiday due to sickness absence applied only to the statutory minimum holiday entitlement provided by the Directive, or whether it also applied in respect of additional leave provided under national rules or collective agreements.

ECJ decision

The ECJ has decided that the Directive does not preclude rules in national laws or collective agreements preventing the carry-over of holiday entitlement in excess of the four-week minimum entitlement under the Directive. Where Member States provide additional holiday, this is governed by national law rather than the Directive. It is therefore open to Member States to determine appropriate conditions for the granting and exercising of additional holiday entitlement, including in the event of sickness absence.

The ECJ also held that the right to annual leave under the Charter of Fundamental Rights of the European Union does not apply in respect of domestic legislation relating to holiday entitlement.

Consequences

A previous decision of the Employment Appeal Tribunal (Sood Enterprises Ltd v Healy, UKEATS/0015/12) had reached the same conclusion in relation to the additional 1.6 weeks of holiday provided under the Working Time Regulations 1998. The EAT held in that case that the Directive did not require the carry-over of the 1.6 weeks’ additional leave in cases where a worker was unable to take the leave due to sickness absence, unless a relevant agreement provided for such carry-over. This decision from the ECJ is welcome confirmation that this is the correct approach.

This article is from the December 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website.

The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.