Annual Leave Rights can Expire during Sick Leave – Advocate General
In an opinion published this week, the Advocate General suggested that the Working Time Directive does not preclude a limitation during which annual leave may be taken, as long as this still provides for recuperation.
While not binding on the Court of Justice of the European Union, the Advocate General’s view is often accepted by the Court.
The case this opinion was based on, KHS AG v Winifried Schulte, involved an employee on long-term sick leave, accruing annual leave rights for several years until the employment was ended. The employee then sought to claim compensation for all their annual leave for the years 2006 to 2008.
The Advocate General has suggested that, while it’s already established that leave entitlements can be carried forward if this can’t be taken due to sick leave, the entitlement does not need to continue indefinitely, as the effect of the recuperation that the leave is intended to provide would not increase. Given that conclusion, there is no reason why the annual leave entitlements shouldn’t expire if it hasn’t been exercised within a reasonable time.
No formal time-limits have been determined, but a carry-over period of only six months is felt to be insufficient, while a window of 18 months after the leave year ends is deemed sufficient.
In practice, even if this opinion is adopted by the Court, it will be of limited benefits to employers: most employers do not pay staff at the full rate of pay for long-term sick leave, so providing they elect to take annual leave during their sick leave, workers will still be able to get paid for their annual leave despite being on long-term sick leave. One small benefit for employers is the fact the leave entitlements will provide a cap on them for any workers that try to amass this. And of course, employees on long-term sick leave may not think to take their leave!