The Court of Justice of the EU (CJEU) has confirmed in two combined cases known as TSN v Hyvinvointialan that where someone cannot take their annual leave due to sickness, the right to roll over that leave to the next year is limited to the EU minimum annual leave allowance of four weeks (20 working days), unless otherwise contractually agreed or stipulated by domestic law.
TSN v Hyvinvointialan
Here the CJEU considered two employees who were entitled by their contracts to 5 and 7 weeks holiday respectively. There was no rollover right mentioned in their contracts. They each had been off sick for a year and claimed that they should be entitled to roll over their entire annual leave allowance. It was decided that each had the right to roll over just four weeks.
So only four weeks can be rolled over in any case?
If a UK worker or employee has been off sick for a year and has not taken any annual leave, an employer is only obliged to roll over four weeks, unless it has been contractually agreed that the employee can roll over more. In this case, their contractual right will trump the legal minimum.
Alternatively, if a country’s domestic legislation provides something more generous than the EU’s four weeks, then this will be the minimum obligation. It remains to be seen whether Parliament might eventually add a rollover right to our relevant legislation (the Working Time Regulations 1998) that would match the 5.6 weeks minimum annual leave allowance. For now, four weeks is the minimum and the maximum (unless a higher figure contractually agreed).
