It has been clear for several years that a worker is entitled to carry forward holiday to the next holiday year if sickness has prevented them from taking their entitlement. However, it has been less clear whether that right applies to the full statutory entitlement or just to the basic four weeks required by the Working Time Directive. In Terveys- ja sosiaalialan neuvottelujärjestö (TSN) ry v Hyvinvointialan liitto ry the CJEU confirmed that carry forward can be limited to the basic entitlement.
The reference to the CJEU arose from two disputes in Finland. Under Finnish law, employees were only permitted to carry forward holiday that they had been unable to take because of sickness to another holiday year if this was needed to ensure that they had received their basic four week entitlement. On the facts of one case, the employee had been unable to take six days' annual leave provided by a collective agreement because of illness. She was only permitted to carry two days' holiday forward to the next holiday year. In the other case, the employee was not entitled to carry forward any holiday provided by a collective agreement, because he had already exhausted his basic holiday entitlement. The cases were referred to see if this was compatible with EU law.
The CJEU held that the Working Time Directive sets down minimum health and safety requirements. Where workers are granted leave in excess of the minimum requirements, Member States can decide what conditions should apply to those additional days of leave without having to comply with the rules that apply to the minimum period. This means that Member States can decide whether to exclude the right to carry forward paid annual leave in excess of the minimum requirement as long as workers are entitled to at least the minimum period of weeks. The Charter of Fundamental Rights does not change the position.
From a domestic perspective this confirms the EAT decision in Sood Enterprises Ltd v Healy, which found that carry forward does not apply to the additional 1.6 weeks' additional leave under the Working Time Regulations.