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Holiday Entitlement Accrues During Sick Time

Leave Carries Over During Periods of Sickness Absence – Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA)

In this recent case before the European Court of Justice (‘ECJ’) referred by the Spanish courts the question was asked:

‘Does Article 7(1) of Directive 2003/88 … preclude an interpretation of national legislation which does not permit interruption of a period of leave so that the full period – or the remaining period – can be taken at a later time if a worker is temporarily incapacitated when he is on leave?’

Article 7 of Directive 2003/88, entitled ‘Annual leave’, provides as follows:

‘1.            Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

2.            The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.’

The ECJ answered the question affirmatively. Member states are required to interpret national legislation, here the Working Time Regulations, consistently. This means that workers who fall ill before or during a period of leave are entitled to have their period of sickness treated as a period of sick leave and can carry over the leave period during which they are sick and take it at a later date even if it carries over into another leave year.

Prudent employers will seek sick notes for period notified to them as sick leave that fall during a period of leave rather than simply rely on self-certification because otherwise they might find substantial periods of leave carry over in the event that employees fall ill during their holidays.

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