The ECJ has held, in a case referred from the Spanish Courts, that an employee who was sick during a scheduled holiday could not be forced to take annual leave during a period of sick leave. He was entitled, under the Working Time Directive, effectively to take the holiday again at a later date, even if that meant carrying over the entitlement into the next holiday year (Francisco Vincente Pereda v Madrid Movilidad SA). Employees in the UK can rely on this decision to claim back statutory holiday "lost" due to sickness in the current holiday year and it has been widely criticised as potentially opening the door to abuse. Employers need to consider what evidence they will require before permitting an employee to re-take holiday that they claim was spoiled by ill health.
The Working Time Regulations do not permit carry over of unused statutory entitlement. However, employees in the public sector can rely directly upon this case and the ECJ's earlier decision in Stringer, to carry forward to the next holiday year any statutory holiday entitlement that is unused due to illness. The position in relation to carry over of unused entitlement for private sector employees is not as straightforward and is likely to be the subject of further litigation.