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Holiday and Sick leave: Recent Judgement on holiday leave accrued by long term sick employees.

The European Court of Justice has further clarified the issue of employees carrying over untaken leave and how much holiday those absent from work due to illness should receive.

In the German case of Neidel v Stadt Frankfurt Am Main,the European court rejected a claim made by a retired fireman, who had been on sick leave for a number of years, for additional leave and to carry over untaken leave for a period of nine months.

The claimant, a fireman had accumulated 86 days of leave because he had been ill in the 2 year period running up to his retirement. His 86 days exceeded the minimum annual four weeks provided by the European Working Time Directive.

The European Court had to consider whether his entitlement (if any) should be limited to the four week minimum provided in the Directive, but also whether German Law could lawfully limit the carry-over of his leave to nine months before it was deemed to lapse.

The Court confirmed that the right for sick workers to carry forward untaken leave only applies to the four week minimum leave entitlement given by the Working Time Directive. If member states choose to give workers more generous leave entitlements, it is for the national law to decide whether to provide for payment in lieu if a person cannot take that additional leave due to sickness.

Therefore the Court of Justice held that on retirement, a public servant is entitled to an allowance in lieu if he has not, on account of sickness been able to take all or part of the minimum paid annual leave of 4 weeks to which he is entitled. However, national legislation may preclude the payment of an allowance in lieu as regards any possible additional entitlement to paid leave.

The Court also held a carry-over period must be substantially longer than the reference period in respect of which it is granted. Therefore, the German law that provided for a nine month carry-over period for untaken leave was incompatible with the EU Working Time Directive, as it was shorter than the leave year reference period to which it related.

Clare McDairmant, Solicitor, Just Employment Solicitors

 

 

 

Clare McDairmant, Solicitor, Just Employment Solicitors.

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