CJEU looks at question of carry over of holiday

Posted 22/11/2019 : By: Jessica Piper

The Court of Justice of the European Union has considered the question of whether annual leave must be carried over from one leave year to another if the employee was prevented from taking it in the current leave year due to sickness absence.

In the Finish case of TSN v Hyvinvointialan the answer was yes, but only in respect of the four weeks provided for by the Working Time Directive (often referred to as “Euro leave”). National rules can be different in respect of any leave granted over and above that initial period.

The basis of the Working Time Directive holiday (the first four weeks) is within health and safety principles.

It is important to insist that individuals take a minimum of four weeks’ leave each year to ensure sufficient rest breaks. If an individual is prevented from taking their minimum Euro leave for any reason, e.g. sickness or family leave, they must be allowed to carry this leave forward to the new leave year, and take it as soon as they are able.

It is important to remember that an employer must not put hurdles in the individual’s way so that they are prevented from taking leave in the requisite year due to business reasons, nor must the employee be paid in lieu of their Euro (or the additional Working Time Regulations) leave, save for on termination of employment.

However, Member States (or companies) can agree their own rules in relation to the carryover of any additional holiday granted by national legislation (e.g. the additional 1.6 weeks under the Working Time Regulations 1998 in the UK) or under contract if the individual is prevented from taking it in the relevant leave year.

In the UK, the decision has been that in the absence of contractual agreement there is no right to carry over more than four weeks’ leave to the new leave year (Stood Enterprises Ltd v Healey).

Holiday leave and pay remains a tricky area for many employers – please contact Jessica Piper in our legal partners, Ashtons Legal, Employment team on jessica.piper@ashtonslegal.co.uk or call 01603 703073 if you need any assistance with such issues.

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