|
| ||||
| ||||
|
| ||||
16/09/2009
|
||||
|
Illness before or during a holiday will not count towards the 4 weeks paid annual leave stipulated by the Working Time Directive (WTD). Any holiday time lost through illness will need to be replaced by an employer in order that a worker can enjoy a holiday, something that is totally separate from recovering from an illness.
The ruling by the European Court of Justice (ECJ) allows for no derogations (exceptions) to the rule of being entitled to paid annual leave. The ruling was made in favour of Francisco Vicente Pereda a tow truck driver who was injured at work shortly before his 4 weeks annual holiday leave began. As his injury took 6 weeks to recover from he was left without a holiday. His employer refused to consider any additional leave despite the circumstances. The employer refused a request to allow Mr Pereda's holiday to be reallocated without giving any reasons. The ECJ based its decision on EU Directive Article 7 2003/88 whereby:
No derogation is allowed for Article 7 of the directive. The ECJ said that workers need actual rest rather than to be paid in lieu (unless the employment relationship is terminated) in order to protect their health and safety (Article 7(2) of Directive 2003/88,Directive 93/104, BECTU/Merino Gómez).
The case of Schultz-Hoff and Others was quoted, whereby the purpose of entitlement to sick leave is so that a worker can recover from being ill. This is in contrast to paid annual leave intended to 'enable the worker to rest and to enjoy a period of relaxation and leisure.' The ECJ therefore decided that a worker on sick leave during a period of previously scheduled annual leave has the right to take his annual leave during a period which does not coincide with the period of sick leave. The rescheduled leave must concord with national law and the needs of the company. The ECJ quoted the case of Federatie Nederlandse Vakbeweging [2006] ECR I-3423 to allow the company to reschedule the annual leave in a year later than the current one. The actual ruling of the European Court (First Chamber)was given in answer to a question from the Juzgado de lo Social n° 23 de Madrid:
"Article 7(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as precluding national provisions or collective agreements which provide that a worker who is on sick leave during a period of annual leave scheduled in the annual leave planning schedule of the undertaking which employs him does not have the right, after his recovery, to take his annual leave at a time other than that originally scheduled, if necessary outside the corresponding reference period."
|