Posts Tagged ‘working time regulations’

The Advocate General of the Court of Justice of the European Union has given her opinion on the question as to whether annual leave can accrue indefinitely where an employee is on long-term sick leave.

The question was referred to the Court of Justice of the European Union by the Higher Labour Court in Germany, who has been asked to decide a claim by a worker for payment in lieu of leave following his dismissal after long-term sick leave.

An employee who is unable to take annual leave due to long-term sickness absence, accumulates the right to take that leave (or pay in lieu if his employment ends) on his return to work.

The Advocate General is, however, of the opinion that it is not a breach of EU law to provide that a right to take accrued leave expires after a minimum period of 18 months following the return to work.

The Advocate General’s opinion is not legally binding, although it is likely to be followed.

The period of 18 months represents a guideline which Member States are expected to follow for the purposes of implementation in their domestic law. The Advocate General has, however, indicated that a possible carry-over period of only 6 months would, in her opinion, be insufficient.

It is anticipated that the UK Working Time Regulations will be amended in due course to take into account the Advocate General’s opinion.

Case reference: KHS AG v Winfried Schulte


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