In the case of TSN v (1) Hyvinvointialan liitto ry (2) Fimlab Laboratoriot Oy the Advocate General (AG) considered two referrals from the Labour Court in Finland.
The cases involved two workers who were entitled under a collective agreement more than the four weeks’ minimum holiday entitlement provided by the Working Time Directive. The workers in this case wanted to carry over holiday that they had not used in the relevant holiday year because they had not been able to use them due to sickness absence. Their employer only allowed them to do so up to the minimum four weeks provided for by the Working Time Directive.
The AG confirmed that the relevant European provisions/decisions relating to carry over of holiday apply only to the minimum four weeks’ holiday provided for by the Working Time Directive. The holiday entitlement provided in excess of the basic minimum four weeks provided for by the Working Time Directive can be treated differently and there is therefore no obligation on employers to allow this excess to be carried over.
It is worth bearing in mind that under the relevant domestic legislation, the Working Time Regulations 1998, holiday entitlement cannot be carried forward into the next annual leave year where the individual is unable to take their holiday entitlement due to sickness absence.
Although it is possible for the opinion of the AG not to be followed, this would be unlikely given that this opinion reflects recent Employment Appeal Tribunal authority on the subject.