The European Court of Justice (the CJEU) has confirmed that where sickness prevents a worker from taking annual leave, leave can be carried forward.

In Sobczyszyn V Skola Podstawowa w Rzeplinie, a teacher took "convalescence" leave (the Polish equivalent to UK "sick leave"), which was provided by a Teachers' Charter, and she was unable to take her annual leave during this time. The school argued that her holiday had been used during convalescence, but it the CJEU held that workers must be able to use annual leave at a later date where sickness has prevented leave.

EU legislation provides for four weeks' annual leave for every worker (as opposed to the UK's 5.6 weeks' leave minimum). The purpose of paid leave is rest and relaxation, whereas sick leave is for recovery from illness. Annual leave can, therefore, be rescheduled on recovery, even if that means rolling it over to another holiday year.

What Should Employers Do Next?

Employers may need to consider their existing practices regarding sickness absence where this prevents an employee from taking holiday, particularly if this results in a shortfall of holiday taken during the holiday year. Employers should also review their holiday policies to ensure that they are in line with this decision of the CJEU.