Workers on long-term sick leave are entitled to carry forward the four weeks’ statutory holiday deriving from the Working Time Directive (WTD), and to be paid for this leave on termination, even if they are absent due to illness for an entire leave year and have not asked to carry the leave forward before the end of the holiday year. The EAT has previously held that the additional 1.6 weeks of leave conferred by our domestic Working Time Regulations 1998 need not be carried over, unless this is permitted by a relevant agreement. An advocate general of the ECJ has recently given an opinion, in claims brought by Finnish trade unions, on whether the EU Charter of Fundamental Rights (Charter), taken together with the WTD, precludes a national law or collective agreement from limiting the amount of holiday which can be carried over in the event of sickness to the four-week’s leave granted by the WTD.
The trade unions argue that any holiday entitlement under national law or collective agreements, which is additional to the four weeks’ WTD holiday, ought to be subject to the same carry-over rules. In the advocate general’s opinion, the Charter is applicable to situations in which enhanced leave is available under national law or collective agreements, because the WTD provides that EU member states may provide enhanced leave entitlements. Therefore, EU member states must not interpret such laws in a way that is inconsistent with the Charter. However, provided the four weeks’ paid leave granted by the WTD is not impacted, member states can set their own rules on the grant, carry-over and extinction of holidays, which are over and above that minimum. If the full court of the ECJ chooses to follow the advocate general’s opinion, this case should confirm that EAT’s decision in Sood Enterprises Ltd -v- Healy is correct.