Labour & European Law Review Weekly Issue 484 24 August 2016
Under the Working Time Directive, member states must ensure that all workers receive paid annual leave of at least four weeks. In Sobczyszyn v Szkola Podstawowa w Rzeplinie, the Court of Justice of the European Union (CJEU) held that this right overrides any national legislation or practice under which a worker who is on sick leave during a rostered period of annual leave is refused the right to holiday when their sick leave comes to an end.
Under the Polish Teachers’ Charter, teachers are entitled to 35 days’ annual leave. Teachers employed full-time who have worked for seven years are also entitled to be granted a period of convalescence leave to follow a course of treatment prescribed by a doctor.
After a period of convalescence leave from 28 March to 18 November 2011, Ms Sobczyszyn claimed her annual leave entitlement for 2011. The school refused, arguing that according to the leave roster for 2011, she had to take her leave during the month of July 2011. This meant that she had used up her entitlement when on convalescence.
The Polish court asked the CJEU to rule on whether Article 7 of the Working Time Directive must be interpreted as precluding national legislation or a national practice, under which an employer can stop a worker from taking their annual leave in a subsequent period, if they are off sick during the period of rostered annual leave.
The tribunal found that YHC had not treated Mrs Geller less favourably because of her sex but rather because it genuinely believed that she worked for them on an ad hoc basis supplying timesheets for an unspecified number of hours.
Nor had it discriminated against her by failing to pay her. Instead, the reason for the non-payment was because of an administrative oversight linked to the illness of the treasurer who was in hospital and needed an operation. As YHC was a small organization and the treasurer was a volunteer, as were the other members of the board, it decided that a man working on a timesheet basis would have been treated in a similar way and Mrs Geller had not therefore suffered direct sex discrimination on this ground either.
Article 7 of the Working Time Directive requires member states to 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”.
Decision of CJEU
The CJEU pointed out that previous case law has established that in the event of a period of annual leave overlapping with a period of sick leave, Article 7 takes precedence over national legislation under which workers lose the right to annual leave if they were off sick for the whole or part of the year. This is because the purpose of the right to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure, whereas the right to sick leave is to enable the worker to recover from an illness.
Although it was for the national court to decide whether the purpose of convalescence leave in this case was different from that of paid annual leave, it was clear from the Teachers Charter that it could only be granted “‘in order to follow a course of treatment prescribed by a doctor”. It was also clear from the question posed by the referring court to the CJEU that the aim of convalescence leave was to improve the state of health of the workers for whom it was prescribed. Unlike paid annual leave laid down in Article 7, it was not intended to grant those workers a period of relaxation and leisure since they must follow a course of treatment prescribed by a doctor.
The answer to the question posed by the referring court, therefore, was that Article 7 must be interpreted as precluding national legislation or national practice under which a worker who is on sick leave during the rostered period of annual leave can be refused the right to paid annual leave when their sick leave comes to an end. However, this is dependent on the national court deciding that the purpose of the convalescence leave is different from that of the right to annual leave.