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Annual Leave and Sick Leave – Schulte & Neidel

The ongoing debate between sick leave and annual leave continues to trouble the European Court of Justice, with the latest challenge focusing on the amount of leave a sick worker can carry over and the carry over period for such leave.In the case of KHS AG v Winfried Schulte, the German Courts asked the Court of Justice of the European Union for guidance on how long holiday accrued whilst on sick leave could be carried forward.  The Court gave some comfort to employers as it held that there is a limit to the length of time that an employee on long term sick leave can continue to carry over untaken statutory annual leave.In this case, the court held that a collective agreement under which the right to carry over statutory annual leave extinguished after 15 months did not breach the Working Time Directive.  The Court did not however indicate if 15 months should be treated as a minimum cut off period in all cases or if it was just appropriate in this particular case.In Neidel v Stadt Frankfurt Am Main the court held that the right for sick workers to carry forward untaken leave under the Directive only applies to the four week minimum leave entitlement given by the Directive.  If therefore Member States choose to give workers more generous leave entitlements, any domestic regulations applying to that extra leave do not have to include any carry over right.In the UK, the government will be amending its own domestic regulations on this issue and has previously proposed that the amount of leave to be carried over will be limited to 4 weeks. It will be interesting to see what happens in relation to the carry over period and whether the UK implement a 15 month carry over period or err on the side of caution and go for a longer period of 18 months.We await with baited breath here in Ireland what the European Courts will throw up next!

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