The Court of Justice of the European Union (‘CJEU’) considered whether member states must provide for payment in lieu on termination in respect of any statutory annual leave, not taken on account of sickness, over and above the minimum four weeks leave required under the Working Time Directive.
The following are the key facts:
- After working as a fire fighter from 1970 until 2007, Mr Neidel became medically unfit for service.
- Mr Neidel was unable to take leave in 2007, 2008 and 2009 due to sickness.
- In 2009 Mr Neidel retired at the age of 60 and upon termination of his employment requested the 86 days of leave owed to him.
- German law did not allow public servants to payments in lieu of untaken leave.
- German law also provided that untaken leave could only be carried over for a maximum of nine months.
The CJEU found in this German case that on retirement, a public servant is entitled to payment in lieu, if he has not, on account of sickness, been able to take all or part of the minimum paid annual leave of four weeks to which he is entitled.
However, national legislation may preclude the payment of an allowance in lieu as regards any possible additional entitlement to paid leave.
The CJEU also found that a carry-over period of nine months was not sufficient according to its recent case law. The Court confirmed that workers on sick leave must be able to carry over their minimum statutory holiday entitlement for a period substantially longer than the reference period to which it relates.
Key point - This means that the additional 1.6 weeks entitlement under the Working Time Regulations 1998 (‘WTRs’) would not have to be paid in lieu. The WTRs are currently being reviewed with regard to formalising a carry over provision.
Neidel v Stadt Frankfurt am Main (2012)