Workers who are sick on annual leave are entitled to extra time off | LabourBlawg

Workers who are sick on annual leave are entitled to extra time off

by Employment Blawg on July 2, 2012

Below is a guest UK employment law blog post regarding a recent ECJ decision which held that employees who are sick on annual leave are entitled to extra time off.

The Law on Annual Leave

Employees are legally entitled to a minimum of 5.6 weeks / 28 days paid annual leave (if they are working 5 days a week). Worker Photo by Kai Hendry on FlickrPart time employees are entitled to the same holidays on a pro rata basis. Employees can of course take more annual leave if permitted to do so by their employers. The amount of annual leave an employee is permitted to take will usually be provided for in the employee’s employment contract.

The Law on Sickness

Employees are entitled to sick leave and sick pay in accordance with the provisions of their employment contract, which cannot be less than Statutory Sick Pay (SSP). Statutory Sick Pay provides that employers must pay their employees a minimum of £85.85 a week for a maximum period of 28 weeks.

To qualify for both the above statutory benefits you have to be an employee (that is, you are working for an employer under a contract of service i.e. not a contract for service such as a contractor). For sick pay, you must also be sick for at least 4 days in a row (including public holidays) and be earning a minimum of £107 per week.

New EU Ruling

Employees in the UK, both by law and under their employment contracts, are not explicitly able to postpone or extend their annual leave if they also get sick during this period. However, this could now be shaken up by the European Court of Justice (ECJ) in Luxembourg, who made a ruling to this effect on 21st June 2012 following a case brought to it by a Spanish trade union against a group of department stores.

This ruling comes further to an earlier ECJ ruling stating that workers who fall sick before a period of annual leave can reschedule their annual leave to a later date so as to prevent a clash between the two periods of leave.


Decisions made by the European Court of Justice are binding on the Courts in the UK (and throughout the EU) and this ruling will have full, immediate effect. The ECJ made its ruling by pointing out that the EU Working Time Directive grants employees at least four weeks paid annual leave regardless of whether the employee is receiving sick pay at the same time. Whilst the UK has an option to opt-out from the EU Working Directive, its option can only be exercised in relation to the clause which sets out a 48 hour limit to the number of hours an employee can work in a working week. This means that employees in the UK (and at least 14 other countries) can voluntarily work more than 48 hours a week.

Therefore as things stand, if an employer infringes an employee’s right to paid annual leave then the employee can bring an action against the employer in their national court and does not have to go directly to the ECJ. In addition an action can be brought against the employer by the UK government or the European Commission, regardless of the size of the employer.

Whilst the ruling will be welcomed by employees, employers amongst others are not so thrilled, arguing that it will cause headaches for employers. Employers (particularly smaller employers) have long been dissatisfied with the EU’s Working Directive and the UK’s Federation of Small Business has urged the UK government to avoid implementation of this ruling whilst the EU’s Working Directive is debated.

Carrying Over Leave

If an employee falls sick at the end of the holiday year and is therefore unable to take all of his or her annual leave, EU law also provides that the employee can carry over their unused annual leave. The ECJ has ruled that employees suffering from long term illnesses can carry over at least a year of unused annual leave, although each member state has jurisdiction to set their own upper limit.

Legal Advice

If you would like further advice on your rights as an employee and / or bringing a claim against your employer than you should seek advice from employment lawyers or the Citizens Advice Bureau (CAB).

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