European Court ruling clarifies holiday entitlement for employees off work due to illness

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 2 May’s judgement of the German case Neidel vs Stadt Frankfurt Am Main, the European Court rejected a claim made by a retired public servant, 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. 

Since a previous court had found that a period of 15 months’ carry-over is likely to be adequate, the parameters for Member States and employers are now clearer: a carry-over period of nine months is too short, whereas 15 months is probably long enough.

On retirement, the claimant, who was unable to take holiday due to incapacity, claimed pay in lieu of his untaken holiday, which amounted to 86 days and exceeded the minimum annual four weeks provided for by the European Working Time Directive.

The 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.

Tim Wragg, principal associate at international law firm Eversheds, said the outcome of the case will be good news to the UK government which, in its proposals for legal reform in the area, had sought to restrict entitlement to leave in such circumstances to a minimum of four weeks’ leave.

He said: “The court has rejected a carry-over period of nine months as insufficient to allow a worker staggered rest periods, which are able to be planned in advance and available in the longer term.

“In particular, it has found that the carry-over period must be substantially longer than the reference period in respect of which it is granted.”

Read about a similar case in the UK, NHS Leeds vs Larner, which is currently being looked at by the Court of Appeal.

For more articles on sickness absence