Laura Macdonald | Senior Associate

No entitlement to carry over more than 4 weeks when on sickness absence

The European Court of Justice has held in a recent case (TSN v Hyvinvointialan) that, in the absence of any contractual agreement, there is no right to carry over anymore than four weeks’ statutory sick leave under the law of Great Britain.

In this case, the Claimants, having been incapacitated by illness during a period of paid annual leave, asked their employer to carry the leave over to the next leave year, and those requests were refused as to the extent they exceeded the minimum four week period laid down in the EU Working Time Directive.

The ECJ recalled that the Directive did not preclude domestic provisions granting a period of paid annual leave longer than the four weeks laid down in the Directive, however, in such a situation any right to paid annual leave that exceeds the minimum period is governed exclusively by the applicable national law.  Therefore, EU member states continue to have the freedom to grant (or not grant) the right to carry over all or some of those additional days of leave where the worker has, during a period of annual leave, been incapable of working due to illness.  Any national rule that prevents the carry over of more than four weeks’ leave was permissible, provided that the minimum of four weeks as provided in the EU Directive are provided for.

Should you require any advice, whether you are an employee or an employer, in relation to annual leave rights, please do not hesitate to contact a member of our specialist team.

Laura Macdonald

Laura Macdonald

Employment Law Team

“I strive to provide clear and practical advice to clients, focussing on the individual or organisation’s particular circumstances and requirements.”

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