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Sickness and Annual Leave

29th June, 2012

The European Court of Justice (“the ECJ”) has ruled in Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and Others Case C-78/11, that workers who fall sick during their annual leave are entitled to their paid leave at a later date, which may even be in a different leave year.

The reference to the ECJ was brought by the Spanish Supreme Court (the Tribunal Supremo) concerning a claim by a number of trade unions calling for recognition of the rights of workers to paid annual leave (under the Working Time Directive 2003/88/EC) when their leave coincides with periods of sick leave which renders them unfit for work.

The ECJ stated that “the purpose of entitlement to paid annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure. The purpose of entitlement to 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.”

The ECJ held that a “worker is entitled to take paid annual leave which coincides with a period of sick leave at a later point in time, irrespective of the point at which the incapacity for work arose.”

It went on to hold that the rearranged period of annual leave, may be scheduled (if necessary) “outside the corresponding reference period for annual leave” i.e. that leave year.

Although the ECJ had previously ruled that a worker who is off sick before their annual leave period commences can take their leave at another time (Francisco Vicente Pereda v Madrid Movilidad SA Case C-277/08), the ECJ has now clarified that it is irrelevant when the incapacity to work arose.

If you have any queries as to how to deal with sickness absences and annual leave please do not hesitate to contact Claire Brook in the Employment team at [email protected] or on 01244 405575.

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