In accordance with the Working Time Directive workers are entitled to at least four weeks’ annual holiday. This is extended by 1.6 weeks as a result of the Working Time Regulations 1998 to give a worker a total of 5.6 weeks’ annual leave. This raises the question of whether employers should allow carry over of 5.6 weeks or 4 weeks when a worker has been off sick for the entire holiday year.
In TSN v Hyvinvointialan liitto ry (C‑609/17) and another case the Advocate General gave an opinion that the EU Charter of Fundamental Rights, read together with the Working Time Directive, allowed member states to limit carry over of holiday in the event of sickness to the four weeks’ leave under the Directive.
The employees argued that the EU Charter of Fundamental Rights, which provides at Article 31(2) that “every worker has the right to … an annual period of paid leave”, should be read together with the ECJ case law on annual leave and sickness, to ensure that the rules on carry-over which apply to the four weeks under the Directive should also apply to holiday in excess of the four weeks under national law or collective agreements.
The Advocate General noted that Article 7(1) of the Directive defines the scope of the fundamental right to annual leave referred to in Article 31(2) of the Charter. Members States must therefore not interpret such laws in a way that is inconsistent with the Charter. However, in his opinion, provided the “hard core of minimum protection” (the four weeks’ paid leave laid down in Article 7(1) of the Directive) is not affected, member states can set their own rules on the grant, carry-over and extinction of paid annual leave over and above that minimum.
If the ECJ chooses to follow the Advocate General’s opinion, this case should confirm that the domestic position in Great Britain under Sood Enterprises Ltd v Healy UKEATS/0015/12 is correct.
Therefore, to comply with the Working Time Regulations 1998, employers should allow carry-over of four weeks’ statutory annual holiday where a worker on long-term sick leave does not take that holiday.