Brussels, 20/01/2009 (Agence Europe) - Workers cannot be denied their paid holidays if they have been on sick leave. This is the European Court of Justice's (ECJ) conclusion made in a ruling on Tuesday 20 January in two joint cases, one German (C-350/06) and the other British (C-520/06). According to the subsidiarity principle, member states have a certain amount of self-management in labour law but according to an ECJ press release, modalities in exercising this law with regard to paid holidays are, nonetheless, “subordinate to certain limits”.
The Landesarbeitsgericht Düsseldorf (Germany) and the House of Lords (United Kingdom) went to the ECJ in cases involving annual leave paid to workers who are on sick leave. In the British case, several workers were seen to refuse their paid holidays, some because they had requested paid holidays immediately following their indefinite sick leave, others because they had been sacked whilst on extended sick leave during the whole “reference period” and had not accumulated any leave entitlement for this period under British legislation. The cases went to the Employment Tribunal, which found in favour of the workers, then to the court of appeal to this tribunal, followed by the Court of Appeal for England and Wales), which found in favour of the employers and finally to the House of Lords, which is the highest court in the United Kingdom.
In its response to the House of Lords, the ECJ's preliminary verdict was that member states are free to determine modalities for paid holidays in their territory but stated that, “without making the very existence of that right subject to any preconditions whatsoever” for the exercise of this right by the worker. Article 7, paragraph 1 of Directive 2003/88 (of the Parliament and Council on working time allow the worker on sick leave to have holiday pay carried over to a future period. The ECJ stresses that Community law does not, on the other hand, tolerate workers not being able to demand their holiday pay after sick leave.
This conclusion by the ECJ is also valid for the joint case in this decision involving German national, Gerhard Schulz-Hoff. The latter is severely disabled and alternated between periods of incapacity due to illness and working at his employer the Deutsch Rentenversicherung Bund (DRB) since 1995. DRB ended his work contract in 2005 and refused to grant sick leave for 2004-05 or compensate Mr Schulz-Hoff because he had been unable to work during the periods in question. The ECJ deemed that this restriction contravenes Community law. In other words, the worker cannot lose his right to holidays because he was not in a position to work during the period in which these rights were accumulated or because he was unable to take the leave in question in the periods laid down.
In connection with the possible compensation to be paid at the end of the contractual working relationship, the ECJ affirmed that they should be calculated on the lines of regular workers' pay and that it is not possible to distinguish between employees that have not worked for health reasons and those who have worked during the period in question. (C.D./trans/rh)