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How much holiday can a worker carry over when they are unable to use it due to sickness?

December 02, 2019

It has been recently confirmed by the Court of Justice of the European Union (CJEU) in TSN v Hyvinvointialan liitto ry and anor that EU member states are only obliged to permit carry-over of the four weeks provided by the Working Time Directive. 

The CJEU considered two joined cases involving Finnish employees who had been absent from work due to long-term sickness (and had been unable to use their holiday as a result). The individuals asked their respective employers to permit carry-over their unused paid annual leave to the next holiday year. One of the employees had a holiday entitlement of 7 weeks and the other, 5 weeks. Their employers allowed their requests but only permitted carry-over of 4 weeks of their paid holiday.

The CJEU decided that there is no right to carry-over any holiday in excess of the 4 weeks’ entitlement under the Working Time Directive.

The Working Time Directive is implemented in Great Britain by the Working Time Regulations 1998, under which workers are entitled to take 5.6 weeks’ (the four weeks’ leave required by The Working Time Directive plus a domestic right to an additional 1.6 weeks’ leave) paid holiday in each leave year. The above case confirms that workers do not have a right to carry-over the additional 1.6 weeks’ leave where they have been unable to take it due to sickness (unless their contract permits carry-over beyond four weeks).  

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How much holiday can a worker carry over when they are unable to use it due to sickness?

David Baynton

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