Member States can limit carry-over of holiday to 4 week entitlement under WTD in sickness absence cases


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The Court of Justice of the European Union (ECJ) has held in Terveys- ja sosiaalialan neuvottelujarjesto (TSN) ry v Hyvinvointialan liitto ry and Auro-ja Kuljetusalan Tyontekijaliitto AKT ry v Satamaoperaattorit ry that neither the Working Time Directive (WTD) or the Charter of Fundamental Rights of the European Union preclude a national law which limits the carry-over to four weeks' leave under the WTD in cases of sickness absence.

This case concerned two separate cases under Finnish law.  In the first the claimant was employed as a laboratory assistant who was on sick leave during a period of around three weeks in September 2015.  When she requested that the six days' leave which had been granted to her in that period be carried over until a later day she was allowed to only carry over two (in accordance with Finnish law), and not the remaining four days (her entitlement under the health sector collective agreement).

In a similar set of circumstances the other claimant who was employed by a shipping company, was on sick leave for a short period, and requested that six days' leave (which was due under the freight transport sector collective agreement rather than Finnish law) be carried over.  His request was refused.

The question of whether the WTD or the Charter of Fundamental Rights precluded national law limiting the carry-over of holiday in the event of sickness to the four weeks allowed under the WTD was referred to the ECJ.  The ECJ concluded that the WTD permits Member States to grant holiday in excess of four weeks to workers and that, where they do so, Member States will be free to determine the conditions relating to the carry-over of such leave. 

Take note:  The ECJ's decision accords with that of the Employment Appeal Tribunal (EAT) in Sood Enterprises Ltd v Healy that the WTD does not require carry over of the 1.6 weeks' additional leave in cases where a worker was unable to take this leave as a result of sickness absence, and that this leave could not be carried over unless a relevant agreement provided for such carry over.

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