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18 December 2019

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Carrying Forward Holiday Accrued During Sickness Absence

Posted by: Stevi Hoyle

In the UK, most workers are entitled to a minimum of 5.6 weeks’ paid annual leave. For a full-time employee working 5 days per week, this equates to 28 days annual leave, although many workers will receive additional holiday rights under the terms of their contract.

This basic right is made up of entitlements granted under both EU and domestic UK law. EU law (the Working Time Directive) states that each EU Member State must provide workers with a minimum of four weeks’ paid annual holiday, equating to 20 days for full time employees. UK law also provides the right to an additional 1.6 weeks’ annual leave, equating to a further 8 days for full time employees.

It has been long accepted that a worker is permitted to carry over annual leave to the next holiday year if they have been prevented from taking their entitlement because of illness. However, the position as to whether this right applies to the full statutory entitlement (ie the full 5.6 weeks’) or just to the 4 weeks’ required under EU law has been somewhat unclear.

Two disputes which arose in Finland were recently referred to the Court of Justice of the European Union (CJEU) to clarify this position.

In considering the two Finnish cases, the CJEU confirmed that where workers are granted leave in excess of the minimum 4 weeks’ provided for under EU Law, Member States are free to decide whether to exclude the right to carry forward that additional annual leave.  The decision confirms that neither the Working Time Directive nor the Charter of Fundamental Rights of the European Union preclude national law which limits carry-over of holiday to four weeks’ leave under the Directive in cases of sickness absence.

The CJEU’s decision confirms the Employment Appeal Tribunal’s (EAT) decision in Sood Enterprises Ltd v Healy which found that the right to carry forward untaken annual leave only applies to the minimum 4 weeks’ and not to the additional 1.6 weeks’ additional leave granted under the Working Time Regulations.

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To discuss how Glaisyers can assist you contact Stevi Hoyle on stevihoyle@glaisyers.com or via 0161 832 4666.

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