A recent ruling in the Court of Justice of the European Union (CJEU) has clarified that, irrespective of whether the sickness commenced before or during the period of scheduled annual leave, an employee whose illness coincides with their annual leave is entitled to rearrange their annual leave to a later date.
In Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and others, Case C-78/11, 21 June 2012, the Court of Justice of the European Union (CJEU) held that a worker who becomes ill during a period of statutory annual leave must be allowed to reschedule the leave, even if this means carrying it over to the next leave year.
In the earlier 2009 case of Pereda v Madrid Movilidad SA, Case C-277/08 , the CJEU had ruled that a worker who became incapacitated prior to annual leave was entitled to take time off as sick leave and postpone their annual leave to a later date.
This latest case involved several Spanish trade unions, who sought a declaration that workers were entitled to postpone paid annual leave where a period of sickness arose after their leave had begun, despite their collective agreements stating the contrary. A reference was made to the CJEU to clarify the position, and the CJEU has now confirmed that the principle in Pereda also applies when the incapacity starts during a period of annual leave. At what point the incapacity for work arose is irrelevant.
In ANGED, a Spanish collective agreement expressly allowed workers to reschedule a planned period of paid annual leave where it coincided with “temporary disability” resulting from pregnancy, labour, etc. There was no equivalent provision for general sickness. The Spanish National High Court granted a declaration that workers who fell ill during a period of annual leave must be allowed to take the affected leave at a later date. The employer appealed and the Spanish Tribunal Supremo referred the matter to the CJEU.
The CJEU held that Article 7(1) of the Working Time Directive precludes a national law 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”.
The CJEU stated that:
• the entitlement to annual leave is a particularly important principle of EU social law, which is laid down in the Charter of Fundamental Rights of the European Union and from which there can be no derogations;
• the purpose of annual leave and sick leave are different; and
• the point at which the sickness arises is irrelevant. It would be arbitrary to distinguish between this case and Pereda. In both circumstances, the employee should be entitled to rearrange the affected period of leave, even if this means carrying it to the next leave year.
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Theodorou Law Firm is a Cyprus law firm with Cyprus lawyers and other legal experts on legal matters involving Cyprus law, EU law and international law. The above should be used as a source of general information only. It is not intended to give a definitive statement of the law.
