Carrying over of holiday pay due to sickness that exceeds 4 weeks can be restricted

In the case of TSN v Hyvinvointialan, the European Court of Justice (ECJ) held that where national legislation goes beyond the 4 weeks minimum annual leave provided for by the Working Time Directive, workers on sick leave who have been unable to take annual leave and wish to carry over their untaken leave to the following year, are only entitled to carry the minimum 4 weeks provided for in the Working Time Directive.

In two combined cases both employers provided more than the minimum of 4 weeks of annual leave – one 5 weeks, and another 7 weeks. Both claimants were incapable of using their whole amount of annual leave due to sickness and wished to take a proportion of the leave into the following year.

The European Court of Justice concluded that when considering the working time directives for workers on sick leave hoping to carry over their accrued annual leave, national legislation or collective agreements exceeding the minimum of four weeks, did not fall within the scope of the directive. Each country has the freedom to grant or not to grant the right to carry over all or some of the additional days of leave where a worker has been incapable of working due to illness.

This case confirms that unless employees have a contractual right to carry over untaken annual leave from one year to the next, the most they are legally entitled to carry over is 4 weeks.