The ECJ ruled last week that, if a worker is sick during paid annual leave, he is able to interrupt the annual leave and take it at a later date, regardless of at what point the incapacity arose. Read on for our employment law team’s commentary of this highly-publicised case.

In Asociacion Nacional de Grandes Empresas de Distribucion v. Federacion de Asociaciones Sindicales and ors1, a collection of Spanish trade unions challenged the terms of a collective agreement and sought declarations that workers were entitled to postpone annual leave if it coincided with sick leave. It had already been established in Pereda v. Madrid Movilidad SA2 that workers who were already on sickness absence prior to a period of pre-booked annual leave were not to be treated as being on holiday during that time. However, it was unclear what the position would be where the employee’s illness arose when the period of annual leave had already commenced.

The Spanish Supreme Court referred this question to the ECJ, asking it to determine whether, under Article 7(1) of the Working Time Directive, a worker must be able to interrupt a period of annual leave if he or she is temporarily incapacitated so that the untaken period of annual leave can be taken at a later date.

The ECJ stated that the right to paid annual leave is an important principle under EU law from which there can be no derogation and the right to take leave at a later time is one that applies across all EU countries. The ECJ drew a clear distinction between the purpose of annual leave and sick leave under the Working Time Directive. If confirmed that paid annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure whereas sick leave is to enable a worker to recover from an illness that has rendered him unfit for work. The ECJ ruled that the point at which the temporary incapacity arose is irrelevant, confirming that the entitlement to postpone annual leave is not limited to occasions when the sickness arises before the annual leave commences. As such, in cases of sickness, workers are entitled to take paid annual leave at a later date, regardless of the time at which the incapacity arose.

The implementation of this decision in the workplace is likely to give rise to a number of practical issues. Employees may face difficulties in reporting illness to their employer and obtaining a doctor’s note when abroad. There is also scope for employees to abuse this right. Perhaps, in the current economic climate, employees will be deterred from abusing the opportunities this ruling provides. Many employees will inevitably be mindful of a possible adverse impression being created if their return from holiday is accompanied by a notification of sickness absence and a subsequent request for additional leave. This is likely to restrict most such cases to genuinely serious conditions rather than trivial conditions/accidents which are inherent to many holidays.

There is also a lack of clarity as to how employers should approach sickness cases arising from the holiday itself, for example if an employee were to get sunstroke or food poisoning while abroad or to suffer a physical injury from a holiday activity such as skiing. It will be up to employers to implement clear guidelines and policies and to clearly communicate these to employees to ensure that they fully understand when the employer deems it to be reasonable for sickness provisions to take effect during periods of annual leave.