Paid leave rights of sick workers upheld

The European Court of Justice ruled in June 2012 that when workers are too ill to work during paid annual leave, they are entitled to reclaim that leave later to compensate for the days during which they were sick. The ruling, which has been prompted by a case brought by unions in Spain, also makes it clear that entitlement to paid annual leave is an important principle of EU social law enshrined in the Charter of Fundamental Rights, and cannot be interpreted restrictively.


In judgment C-78/11, the European Court of Justice (ECJ) ruled on 21 June 2012 that if a worker is so ill that he or she is unable to work, and that illness occurs during paid annual leave, the worker has the right to claim further paid leave to make up for the missed days of holiday. The ruling is the outcome of a case brought against Spain’s National Association of Large Distribution Businesses (ANGED) by a number of unions led by the Federation of Trade Unions (FASGA).

Unions’ collective action

In Spain, the dates of a worker’s annual leave must be agreed by mutual consent between the employer and employee, usually within the framework of a collective agreement. In Spanish law, where leave coincides with pregnancy, giving birth or breastfeeding, the worker is entitled to time off in lieu at a later point. However, the law does not cover situations where leave coincides with sickness.

Spanish trade unions brought a collective action in the Spanish courts, attempting to achieve the right to paid leave for workers in department stores covered by a collective agreement, even where the leave coincides with sick leave. This was opposed by ANGED and the case was referred to the ECJ. The court was asked to decide whether the EU Working Time Directive (2003/88/EC) overrides Spanish legislation that denies extra leave to an employee who becomes unfit for work during annual leave.

Annual leave in EU law

Setting out its reasons for its decision, the ECJ said that case law had established that entitlement to paid annual leave must be regarded as an important principle of EU social law, one enshrined in the EU’s Charter of Fundamental Rights. The right to paid annual leave cannot be interpreted restrictively. It also said that the purpose of paid annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure, but entitlement to sick leave is different, since it enables a worker to recover from an illness that has caused them to be unfit for work. It also pointed to a former ECJ judgment (Case C-277/08) in which the court had found that a worker who was unfit for work before the start of a period of paid annual leave was entitled to take that leave at another time.

Workers entitled to replacement leave

The ECJ ruled that the point at which the incapacity for work arose is irrelevant; a worker is therefore entitled to paid annual leave at a later date, irrespective of when the incapacity for work arose. The court said it would be contrary to the purpose of paid holidays to grant workers replacement leave only if they are already unfit for work when the leave starts. It also said the new period of leave could be scheduled, if necessary, outside the dates when annual leave was normally allowed to be taken.


This important judgment advances case law around annual leave and sick leave. ECJ case law has already established that an individual’s right to take annual leave is separate from their need to take sick leave. This latest judgment makes it clear that a worker’s annual leave entitlement will not be lost if that worker is sick during annual leave, and the worker will now have a right to take the leave at a later date. It says that it does not matter when an employee falls ill. This can be before or during the period of annual leave. The ruling also says that the new period of leave can be scheduled outside the normal agreed period for taking annual leave.

Andrea Broughton, Institute for Employment Studies

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