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Sickness and Annual Leave

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[Thanks to Angharad Davies of Dere Street Barristers for preparing this case summary]

If a worker is sick during annual leave can they take their annual leave at a later date?

Yes, says the CJEU in ANGED V FASGA, they can regardless of when the period of sickness began.

This was a reference for a preliminary ruling from the Tribunal Supremo (Spain) concerning the interpretation of Article 7(1) of Directive 2003/88/EC. Article 7 entitles worker to four weeks annual paid leave each year. This period may not be replaced by an allowance in lieu, except after termination.

The court considered the following propositions:

First, the entitlement to paid annual leave is an important principle of European Union law enshrined in the Charter of Fundamental Rights of the European Union.

Second, the right to annual leave cannot be interpreted restrictively.

Third, annual leave and sick leave have different purposes.

Fourth, a worker who is on sick leave during scheduled annual leave has the right to take annual leave at a different time.

Therefore, it would be contrary to the purpose of annual leave to grant that right only if the worker was already unfit for work when the period of annual leave commences.

Article 7(1) must be interpreted as precluding national provisions under which a worker who becomes unfit for work during a period of paid annual leave is not entitled subsequently to the paid annual leave which coincided with the period of unfitness for work.