Is a member state of the EU obliged to permit carry over of annual leave from one leave year to another due to sickness absence?
Not any in excess of the 4 weeks provided for in the Working Time Directive, held the CJEU in TSN v Hyvinvointialan.
In two combined cases, the CJEU considered aspects of Finnish law and collective agreements that provided for more paid holiday than the 4 weeks minimum under the Working Time Directive. In one case this was 5 weeks, in another 7 weeks. Both employees were unable to take all their leave in one year due to sickness absence. There were a number of matters referred to the CJEU, but of most importance was whether national rules preventing carry over of more than 4 weeks' leave were permissible.
The Grand Chamber of the CJEU said:
"In such a situation, the rights to paid annual leave thus granted beyond the minimum required by [the Working Time Directive] are governed not by that directive, but by national law, outside the regime established by that directive...In the light of the foregoing considerations, the answer is that [the Working Time Directive] must be interpreted as not precluding national rules or collective agreements which provide for the granting of days of paid annual leave which exceed the minimum period of 4 weeks...and yet exclude the carrying over of those days of leave on the grounds of illness."
This confirms that the decision in Sood Enterprises Ltd v Healey was correct and that in the absence of contractual agreement, there is no right to carry over any more than 4 weeks' statutory leave under the law of Great Britain.
Thanks to Matthew Jackson of 10 KBW for preparing this case summary.