ECJ holds that workers off sick and unable to take annual leave may carry it forward

ECJ holds that workers off sick and unable to take annual leave may carry it forward

In Sobczyszyn v Szkola Podstawowa w Rzeplinie, Ms Sobczyszyn was a teacher in Poland and was entitled to 35 days’ annual leave each year under Art 64 of the Teachers’ Charter which sets out the rights and obligations of teachers in Poland. Ms Sobczyszyn was on sick leave between 28 March and 18 November 2011.


In April 2012, Ms Sobczyszyn claimed she was entitled to the annual leave she had accrued in 2011 but had been unable to take due to her sick leave. The school disagreed. The Polish court could not decide whether the Teachers’ Charter complied with the EU Working Time Directive and the proceedings were referred to the ECJ.


The ECJ held that a national law or practice which prevents a worker from carrying over unused annual leave at the end of the leave year where the worker has been off on sick leave for the entirety or part of the leave year and not therefore been able to exercise their right to take their scheduled leave, is incompatible with the directive, so long as the national court is content that the annual leave and sick leave have different purposes.


In reaching its decision the court considered that the purpose of the right to paid annual leave is to enable the worker to have a period of leisure and relaxation which is entirely different to the purpose of sick leave. Furthermore, not only is the right to four week’s paid annual leave an important EU law principle, but the right to paid leave cannot be interpreted restrictively.


The ECJ did not go on to deal with untaken annual leave which had not been scheduled prior to the worker going off sick. However, given the court’s reasoning, it is unlikely to make any difference.

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