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Carrying over paid annual leave when off sick?

If an employee is absent from work due to sickness, can they carry forward their annual leave entitlement?

The answer following the decisions of recent case law, is yes, and this has been reaffirmed by the European Court of Justice (ECJ) in the case of ‘Sobczyszyn -v- Skola Podstawowa w Rzeplinie’.

The facts of the case

• Ms Sobczyszyn was a teacher at Szko?a Podstawowa w Rzeplinie (the school). She was entitled to 35 days’ annual year each leave under Article 64 of the Teachers’ Charter. Ms Sobczyszyn was on sick leave between 28 March and 18 November 2011. On 27 April 2012, she claimed that she was entitled to the annual leave she had accrued in 2011, but had been unable to take due to her sick leave.
• The school disputed her claim, arguing that under the 2011 leave rota Ms Sobczyszyn should have taken her annual leave between 1 and 31 July 2011, and her entitlement had therefore been “used up” by her sick leave which extended over that period.
• Ms Sobczyszyn brought a claim in the Polish courts. The court was unclear whether the Teachers’ Charter complied with the requirements of Article 7 of the Directive, which confirms that every worker is entitled to four weeks’ annual leave.
• The court stayed the proceedings and referred the matter to the ECJ for a preliminary ruling on whether an employee can carry forward annual leave entitlement that was untaken during a period of sick leave?
• The outcome was that if a worker is prevented from taking annual leave due to sickness, their entitlement can be carried forward.

Annual leave entitlement therefore does accrue during periods of sick leave, prior to the Sobczyszyn case this was confirmed in the case of ‘Stringer v HMRC’ (previously known as ‘Ainsworth -v- HMRC’). In this case the ECJ held that:

• a worker who is on sick-leave for the whole of an annual leave year is entitled to a period of four weeks’ paid annual leave, despite the fact they are not actually at work. The national courts can decide whether the paid leave can be taken during that year, or whether it should be carried over to another year, but either way the employee is entitled to be paid at some point.
• the right to paid annual leave is not extinguished at the end of a leave year if the worker was on sick leave for the whole of that year, or if he was absent on sick leave for part of the year, and was still on sick-leave when his employment terminates.

For employers, it is therefore important to recognise that whether leave has been booked by a worker or not makes no difference, if sickness prevents the worker from taking annual leave, the general rule is that workers must be able to use annual leave at a later date. This can be a complex area of law, which often raises questions of how much entitlement can be carried forward and how far back, if at all this provision can be backdated. We would recommend that advice is sought from one of our employment lawyers if you are encountering any issues regarding annual leave entitlement, arising out of sickness absence.

Carrying over paid annual leave when off sick?

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