Annual leave disrupted by sickness can be taken at a later date, irrespective of when the sickness started

In Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales and ors the ECJ has held that the EU Working Time Directive (No.2003/88) requires that a worker who is sick during paid annual leave is able to interrupt the annual leave and take it at a later date – irrespective of whether the sickness commenced before or during the annual leave.

Several Spanish trade unions brought collective actions seeking declarations that workers were entitled to postpone paid annual leave where it coincided with sick leave, despite contrary provision in collective agreements. The Audiencia Nacional (Spanish High Court) upheld their claims. On appeal, the Tribunal Supremo made a reference to the ECJ asking whether, under Article 7(1) of the Working Time Directive, a worker must be able to interrupt a period of annual leave if he or she is temporarily incapacitated so that the full (or remaining) period can be taken at a later time.

The ECJ reiterated that the right to paid annual leave is an important principle of EU social law from which there can be no derogation and is expressly laid down in Article 31(2) of the Charter of Fundamental Rights of the European Union. The purpose of paid annual leave is to enable workers to rest and enjoy a period of relaxation and leisure, whereas the purpose of sick leave is to enable a worker to recover from an illness that has caused him to be unfit for work. The Court had already held in Pereda v Madrid Movilidad SA (Brief 887) that a worker who was on sick leave prior to, and during, a period of previously scheduled annual leave had the right, at his request, to take the annual leave when he had recovered.

The ECJ held that the point at which the temporary incapacity for work arose is irrelevant. A worker is entitled to take paid annual leave which coincides with sick leave at a later time, irrespective of the point at which the incapacity for work arose. As stated in Pereda, this new period of annual leave may be scheduled, if necessary, outside the normal reference period for annual leave. It would be arbitrary and contrary to the purpose of paid annual leave to allow a worker to take annual leave at a later date only if he was already unfit for work when the period of paid annual leave commenced.