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Europe – EU ruling on workers falling ill while on leave

26 June 2012

Workers who fall ill while on annual leave are entitled to take the time off at a later stage, a new court decision by the European Court of Justice confirmed recently.

The ruling from the 21 June 2012 points out that this right exists irrespective of the point at which the incapacity for work arose and underlines that “the Working Time Directive entitles all workers to annual leave.“

This comes after unions in Spain brought the case to the attention of the European Court of Justice in order to protect the right of employees working in department stores to reclaim leave should they become ill whilst taking time off. The National Association of Large Distribution Businesses (Asociación Nacional de Grandes Empresas de Distribución) had opposed this as in its view, workers affected by temporary incapacity for work – before starting a period of pre-arranged leave, or who are so affected during such a period of leave – are not entitled to take leave at a later date.

The Court ruled that “entitlement to paid annual leave must be regarded as a particularly important principle of EU social law, a principle expressly enshrined in the EU Charter of Fundamental Rights. The right to paid annual leave cannot be interpreted restrictively.“

It also said that  the purpose of entitlement to paid annual leave is “to enable the worker to rest and enjoy a period of relaxation and leisure. The purpose of entitlement to sick leave is different, since it enables a worker to recover from an illness that has caused him to be unfit for work.“

In the judgment, the Court was clear that the point at which the temporary incapacity arose is “irrelevant.“ Hence a worker is entitled to take paid annual leave which coincides with a period of sick leave at a later point in time, irrespective of the point at which the incapacity for work arose. It would be “arbitrary“ and “contrary“ to the purpose of entitlement to paid annual leave to grant workers the right to paid leave only if they are already unfit for work when the period of paid annual leave commences.

In that context, the Court noted that the new period of annual leave (corresponding to the duration of the overlap between the period of leave initially scheduled and the period of sick leave to which the worker is entitled after he has recovered) may be scheduled, if necessary, outside the corresponding reference period for annual leave.


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