In this alert we focus on a recent Court of Justice of the European Union case which assessed how much statutory holiday a worker can carry over if they are absent through long-term sickness.
Are EU member states allowed to limit the carrying over of holiday to the 4 weeks’ leave period guaranteed by the European Working Time Directive?
TSN v Hyvinvointialan
Two combined cases were heard in the Court of Justice of the European Union to assess how much holiday workers in EU member states were able to carry over if they had not been able to take all of their annual leave in one year due to sickness absence.
The cases involved aspects of Finnish Law and considered collective agreements that allowed for more paid holiday than the minimum 4 weeks under the European Working Time Directive (in one case it was 5 weeks and in another it was 7 weeks). If workers are contractually granted more holiday than the European statutory minimum, do they have an automatic right to carry this ‘extra’ holiday over or is it always capped at 4 weeks in the absence of a contractual right to carry the extra over?
The CJEU held that no holiday in excess of the 4 weeks provided for in the European Working Time Directive can be carried over. They insisted that the Working Time Directive does not prevent employers granting more paid annual leave than the minimum 4 weeks but, without an agreement, sets a 4-week maximum period of carry over.
The outcome of the cases shouldn’t come as a surprise to readers of our alerts as it essentially confirms the decision of the UK Employment Appeal Tribunal in the case of Sood Enterprises Ltd v Healey that unless there is an agreement to allow a worker to carry forward any additional entitlement, workers will only be entitled to accrue and carry forward 4 weeks holiday.
Nevertheless, it is useful for employers that the position has been confirmed at European level.
If you have any queries, please contact our employment team on 01228 552600 or 01524 548494.