European court backs unions on sick leave and annual leave

10th July 2012

The European Court of Justice (ECJ) has ruled that workers who become unfit for work while taking annual leave are subsequently entitled to have their paid annual leave reimbursed. In a determination that followed a request for clarification from Spanish unions, the ECJ said national laws could not overrule this principle.

Following the determination, the Irish Congress of Trade Unions (ICTU) has sought a meeting with senior Government officials to press its view that the principle should apply to contractual leave as well as the 20 days’ minimum statutory leave required under EU law. This is important because many workers enjoy more than the minimum leave under agreements negotiated by their unions.

The ICTU position is rooted in an earlier ECJ decision involving staff working in British revenue and customs.

The ECJ, which interprets EU laws, ruled that article 7(1) of the EU working time directive, which sets out minimum leave, breaks and rest requirements for workers, “must be interpreted as precluding national provisions under which a worker who becomes unfit for work during a period of paid annual leave is not entitled subsequently to the paid annual leave which coincided with the period of unfitness for work.”

The ECJ’s rationale is that the purpose of sick leave is different from that of annual leave. “The purpose of entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of sick leave is different. It is given to the worker so that he can recover from an illness that has caused him to be unfit for work.”

On this basis, “a worker who is on sick leave during a period of previously scheduled annual leave has the right, at his request and in order that he may actually use his annual leave, to take that leave during a period which does not coincide with the period of sick leave”.

Article 7 of the working time directive requires EU member states to “take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.”