In 2012 the EAT held in the case of Sood Enterprises Ltd v Healy that only the 4 weeks provided for under the Working Time Directive ("WTD") must be carried over to a new holiday year in circumstances where a workers has been unable to take them due to sickness. The additional 1.6 weeks provided for under the Working Time Regulations need not be carried forward.
This issue has now also been considered by the Court of Justice of the European Union (CJEU) in the case of TSN v Hyvinvointialan. The Court looked at two appeals both of which concerned workers who had not been able to take annual leave due to sickness. The workers involved were both entitled to more holidays than the minimum European requirement of 4 weeks, and both had national rules that prevented the carry over of more than 4 weeks leave, so reflected the position in Britain. The CJEU considered whether the national rules limiting the carry over were permissible.
The CJEU held that, as any right to paid annual leave that exceeds the EU minimum is governed by national law, provisions regarding carry over of those additional days are a matter for national and not European law. The WTD could not then preclude national rules preventing the carry over of the additional days when workers had been unable to take them because of sickness absence.
This judgement confirms the position taken by the EAT in Sood was correct. While this case clearly is of relevance to those on long term sick leave who are unable to take any of their annual leave, it also raises the question for those who have been able to take some of their annual leave before falling sick as to which days off are attributable to the EU minimum and which are attributable to the additional days that would not be carried forward. On that point the EAT in Bear Scotland Ltd v Fulton concluded that an employer can decide which leave is taken first. On the basis that an employer may want to limit the amount of days that can be carried forward, it would make sense for employers to clearly set out in contracts or policy documents that it is the 4 week WTD entitlement that is taken first in any leave year.