The interplay between sickness absence and holidays continues to generate European decisions, the latest of which impact on the amount of leave a sick worker can carry over and the carry over period for such leave.
In the case of KHS AG v Winfried Schulte, the German Courts asked the Court of Justice of the European Union (‘CJEU’) for guidance on how long holiday accrued whilst on sick leave could be carried forward. The CJEU gave some comfort to employers as it held that there is a limit to the length of time that an employee on long term sick leave can continue to carry over untaken statutory annual leave. In this case, the CJEU held that a collective agreement under which the right to carry over statutory annual leave extinguished after 15 months did not breach the Working Time Directive (”the Directive”). The CJEU did not however indicate if 15 months should be treated as a minimum cut off period in all cases or if it was just appropriate in this particular case.
Further clarification on the amount of statutory annual leave can be carried over was given by the CJEU in the case of Neidel v Stadt Frankfurt Am Main - it held that the right for sick workers to carry forward untaken leave under the Directive only applies to the four week minimum leave entitlement given by the Directive. If therefore Member States choose to give workers more generous leave entitlements (as in the UK where workers are entitled to 5.6 weeks’ paid holiday leave in each leave year), any domestic regulations applying to that extra leave do not have to include any carry over right.
The case of Niedel also confirmed that although domestic rules can provide for carried over leave to “expire” if not taken within a set period, the time period for taking this leave cannot be too short. In fact, the CJEU indicated that a nine month carry over period was too short and precluded by the Directive.
The UK, the government will be amending its own domestic regulations on this issue and has previously proposed that the amount of leave to be carried over will be limited to 4 weeks. It has made no proposals on the carry over period and it will be interesting to see whether they implement a 15 month carry over period or err on the side of caution and go for a longer period of 18 months.