Sick during holidays
Labour & European Law Review Weekly Issue 279 26 July 2012
Article 7 of the Working Time Directive gives all workers the right to four weeks’ annual leave. In Asociación Nacional de Grandes Empresas de Distribución v Federación de Asociaciones Sindicales and ors the Court of Justice of the European Union (CJEU) held that the directive must be interpreted so that workers who are sick during paid annual leave can take it at a later date, irrespective of whether the sick period started before or during the leave.
A number of Spanish trade unions initiated a collective dispute procedure seeking a declaration that workers covered by the collective agreement for department stores were entitled to paid annual leave even when the period of leave coincided with when they were absent from work on sick leave.
The Spanish High Court upheld their claims, but on appeal, the Tribunal Supremo made a reference to the CJEU asking whether Article 7(1) of the Working Time Directive precluded workers who were unfit for work during a period of annual leave from being entitled to paid annual leave at a later date.
Article 7 of the directive states that:
- Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
- The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.
Article 17 allows member states to derogate from certain provisions, but not with regard to Article 7.
Decision of the CJEU
The Court made the following observations:
- that the entitlement of every worker to paid annual leave is a particularly important principle of European Union social law from which there can be no opt-outs
- that the right to paid annual leave is expressly laid down in the Charter of Fundamental Rights of the European Union
- the right to paid annual leave cannot be interpreted restrictively
- the purpose of paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure; whereas the purpose of sick leave is to allow workers to recover from an illness that has resulted in being unfit for work
- that case law has established that a worker who is on sick leave during a period of scheduled annual leave has the right to ask to take that leave at another time (Pereda v Madrid Movilidad SA, LELR weekly 141).
That being so, the Court held that workers are 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 started.
As was made clear in Pereda, this new period of annual leave may be scheduled, if necessary, outside the normal reference period for the leave.