European Court of Justice rules – more holidays if you fall ill during your holidays

The European Court of Justice (ECJ) ruled this week that an employee who falls ill while on paid annual leave is entitled to a further period of paid annual leave of the same duration as the sick leave, irrespective of when the employee fell ill. For example, if an employee were to take ten days’ annual leave, but were to fall ill for three days during that leave, s/he would be entitled to a further three days’ annual leave at a later point in time.

The ruling came about on foot of a number of trade unions representing department store workers bringing collective actions in Spain  in an attempt to have the employees’ right to annual leave recognised, even when it coincided with sick leave. The Spanish High Court (the ‘Audiencia Nacional’) upheld the claims, but the matter was appealed to the Supreme Court (the ‘Tribunal Supremo’), who referred the matter to the Court of Justice.

The ECJ described the entitlement to paid leave, which is set out in the Working Time Directive [2003/88/EC], as “a particularly important principle of European Union social law from which there can be no derogations”. It further stated that the entitlement “cannot be interpreted restrictively”.

It described the purpose of annual leave as allowing an employee “to rest and enjoy a period of relaxation and leisure”, and contrasted that with the purpose of sick leave, which is to enable an employee “to recover from an illness that has caused him to be unfit for work”. Thus, an employee who becomes ill during a period of paid annual leave has not had the full benefit of the leave, and is entitled to reschedule the period of the leave which coincided with the illness.

How does the decision, which is now legally binding on all members of the European, affect Irish law? In short, it doesn’t, as Ireland already legislates for such a scenario. Under Irish employment law, an employee who has a certified illness during a period of annual leave is entitled to have the sick days deducted and, thus, still have annual leave remaining.

You can read the English translation of the judgement here, and find more information on Irish law in the area on the Citizens Information website.


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Filed under Employment Law, European Judgements, Recent Developments

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