Carrying over paid annual leave when sick


The ECJ has reaffirmed in Sobczyszyn -v- Szkoła Podstawowa w Rzeplinie (C-178/15), that a worker who is recovering from ill health during a period of annual leave is entitled to carry the leave forward into the next holiday year. A national law which prohibits this is incompatible with Article 7 of the Working Time Directive (2003/88/EC).
In 2012 Ms Sobczyszyn, a teacher working in Poland, requested to use annual leave accrued in 2011 which she had been unable to take due to a period of convalescence leave. Her employer refused the request on the grounds that annual leave must be taken in the year it is accrued and that she had already taken her annual leave entitlement during her period of convalescence leave.
The ECJ stated that it was necessary to distinguish between annual leave and convalescence leave. They specified that the purpose of annual leave was “to enable the worker to rest and enjoy a period of relaxation and leisure”. This is different from the purpose of sick leave, which is “to enable the worker to recover from an illness”.
The ECJ held that a national law preventing a worker from carrying annual leave forward which they have been unable to use due to a period of convalescence leave is incompatible with Article 7. Providing the national court can conclude that the annual leave and convalescence leave have been taken for different purposes, the worker must not be prevented from carrying unused annual leave forward to the next leave year.

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