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Case Law

Holiday pay and sick leave

The European Court of Justice has reaffirmed that an employee may be entitled to carry annual leave over where they cannot take it due to sick leave.

Sobczyszyn v Szkoła Podstawowa w Rzeplinie [ECJ] | 2016

The Facts

The case concerned a Polish teacher.  Ms Sobczyszyn was entitled to 35 days’ annual leave but could not take her entitlement as began took one year’s convalescence leave from work ‘to follow a course of treatment prescribed by a doctor’.  When Ms Sobczyszyn requested to take her leave the following year, her request was refused. The school took the view that she had taken holiday during her period of convalescence.

The District Court in Poland asked the European Court of Justice whether annual leave could be taken during a period of convalescent leave.

Decision

The ECJ considered the purpose of annual leave, being to allow workers a period of ‘relaxation and leisure’.  It also considered the purpose of convalescent leave, being to allow the worker ‘to follow a course of treatment prescribed by a doctor’.  It did not decide if the two purposes were different and left it to the Polish court to consider.

Comment

In all likelihood the Polish court will conclude the two periods of leave are for different purposes and that Ms Sobczyszyn should be allowed to take annual leave she would otherwise have taken had she not been convalescing on her return to work.  This follows existing case law and is a reminder that workers should be able to take annual leave at a later date, including carry over annual leave, where they cannot take it due to sick leave.

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Julie Temple, Partner

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