Sickness during annual leave: holiday can be taken at another time irrespective of when incapacity occurs

Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and others Case C-78/11 ECJ

annual leave | sick leave | incapacity occurring just before or during holiday

The European Court of Justice (ECJ) has confirmed that a worker who is sick during a period of annual leave cannot be precluded from taking the holiday at a time other than that originally scheduled, irrespective of when the incapacity for work first arose. 

Spanish law provides that, where a period of annual leave coincides with a period of temporary incapacity to work as a result of pregnancy, labour or breastfeeding, the worker is entitled to take leave corresponding to the period of incapacity at a later time. A clause in a collective agreement for department stores gave effect to this Spanish law. However, Spanish law does not address the situation in which the period of leave coincides with a period of sick leave on account of temporary disability. 

A number of Spanish trade unions challenged the terms of the collective agreement. The trade unions sought a declaration in the national courts that department store workers covered by the collective agreement are entitled to paid annual leave even where that leave coincides with periods when they are absent from work on account of temporary disability. The business group Asociación Nacional de Grandes Empresas de Distribución (ANGED) opposed the unions. 

The Supreme Court in Spain referred to the ECJ the question of whether or not the Working Time Directive (2003/88/EC) must be interpreted as precluding 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 that coincided with the period of unfitness for work. 

The ECJ reminded itself of EU case law on entitlement to paid annual leave, particularly its decision in Pereda v Madrid Movilidad SA [2009] IRLR 959 ECJ. In that case, the ECJ said that it is unlawful for national provisions or collective agreements to provide that a worker who is on sick leave during a period of annual leave scheduled in his or her employer's annual leave planning schedule does not have the right, after his or her recovery, to take annual leave at a time other than that originally scheduled. 

The ECJ stressed that it is common ground that the purpose of entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of entitlement to sick leave is different. It is given to the worker so that he or she can recover from an illness that has caused him or her to be unfit for work. 

According to the ECJ, it follows that, in the case of a worker who is unfit for work during a period of paid annual leave, the point at which that temporary incapacity arises is irrelevant. Consequently, the worker is entitled to take paid annual leave that coincides with a period of sick leave at a later time, irrespective of the point at which the incapacity for work arose. It would be arbitrary and contrary to the purpose of entitlement to paid annual leave to grant the worker that right only if he or she is already unfit for work when the period of paid annual leave commences. 

The ECJ pointed out that the new period of annual leave (corresponding to the duration of the overlap between the period of leave initially scheduled and the period of sick leave) to which the worker is entitled after he or she has recovered may be scheduled, if necessary, outside that annual leave year. 

Additional resources

• Line manager briefing on annual leave This line manager briefing covers the topic of annual leave and aims to help line managers to understand the laws on holiday entitlement and holiday pay and how they have been interpreted by courts and tribunals. 
• How to deal effectively with sickness that occurs during or just before a period of holiday The XpertHR "how to" service provides guidance on dealing effectively with sickness that occurs during or just before a period of holiday. 
• Policy and procedure on sickness occurring during or just before a period of holiday Use this model policy to deal with sickness or injury that occurs during an employee's holiday or just before a planned holiday. 

Case transcript of Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales (FASGA) and others (on the ECJ website)