Sickness and Carry-over of holiday

December 20, 2019, By

In an ECJ Judgment referred from the Labour Court in Finland, namely TSN v (1) Hyvinvointialan liitto ry (2) Fimlab Laboratoriot Oy,  the ECJ examined once again the issue of carry-over of holiday when a worker is off sick and unable to take their holiday entitlement in the current holiday year.

The ECJ examined two cases in which workers were each entitled to more than the minimum four weeks holiday per year provided for by the Working Time Directive. Each employee wanted to carry over holiday that they had not used because of sickness absence but were only allowed to do so up to the minimum four weeks provided for by the Working Time Directive. In one case, the employer relied on domestic legislation and in the other, the employer relied on a collective agreement.

The Finnish Court referred questions to the ECJ asking whether the Working Time Directive precluded national legislation or collective agreements which prevented days in excess of the minimum four-week holiday being carried over when holiday hadn’t been taken due to sick leave.

The opinion of the Advocate General was that domestic legislation and/or collective agreements may restrict carried over holiday to the minimum four weeks provided by the Working Time Directive. The ECJ agreed and confirmed that the principles requiring carry-over apply only to the minimum four weeks holiday provided for by the Working Time Directive and not in respect of any holiday provided in excess of this. Therefore, national rules or collective agreements which exclude carry-over of days of leave on the grounds of illness over and above the four weeks minimum Working Time Directive entitlement are permitted. This is in line with UK domestic legislation, namely the case of Sood Enterprises in the EAT.