Carry-Over Period of Annual Leave Must Protect Employers

As envisaged following the Advocate General’s earlier opinion, in a ruling handed down today , the ECJ has confirmed that the Working Time Regulations – or more precisely, the Directive (2003/88) behind them – does not preclude national provisions or practices which limit the carry-over period of annual leave.

Previous rulings of the ECJ have confirmed that workers should be entitled to carry-over annual leave, and continue to accrue this during prolonged sick leave. In very serious cases though, this could have resulted in an infinite amount of annual leave available, once the sick leave had ended.

Recognising that there is also a need to protect employers, the Court found

“That carry-over period must also protect the employer from the risk that a worker will accumulate periods of absence of too great a length, and from the difficulties for the organisation of work which such periods might entail.

“A right to such unlimited accumulation of entitlements to paid annual leave, acquired during such a period of unfitness for work, would no longer reflect the actual purpose of the right to paid annual leave.

“In the light of the foregoing it may reasonably be considered that a period of 15 months for carrying over the right to paid annual leave, such as the period at issue in the main proceedings, is not contrary to the purpose of that right, in that it ensures that the latter retains its positive effect for the worker as a rest period.”

There is still the separate recent ruling of the EAT to consider –  Fraser v St George’s Mental Health Trust – that the prinicpal of “use it or lose it” applies to annual leave, so without a provision that annual leave can be carried forward in cases of long-term sick leave, this may still be lost. No doubt, more case law to follow…

Filed under: Fitness for Work, Flexible Working, General News, Health & Safety, Laws & Regulations by Employment Law Clinic           Post created on: November 22nd, 2011