Annual leave and sickness absence re-visited

23 May 2012

Georg Neidel v Stadt Frankfurt am Main CJEC Case C-337/10

The Court of Justice of the European Communities (CJEC) has given judgment in a case referred by the German courts concerning the payment in lieu of annual leave over and above the minimum amount specified in the European Working Time Directive ­ four weeks.

This case was brought by Mr Neidel who worked in Stadt Frankfurt am Main’s fire service from 1970 onwards. In 2007 Mr Neidel became medically unfit to serve. He then went on to retire in 2009 after turning 60 years old. Mr Neidel sought payment for his accrued but untaken holiday from the years during which he was on sickness absence i.e. 2007, 2008 and 2009. This amounted to 86 days’ holiday.

In addressing the claim, the Frankfurt Administrative court referred a number of questions in the case to the CJEC. The answers to two of these questions are of general interest:

  1. The carry-over period for untaken leave must be equal to the leave year reference period. (In this case it was 9 months and not the 1 year it should have been.)
  2. It is up to EU member states and their national laws to decide whether the amount of annual leave in excess of the Directive’s 4 week minimum should be paid in lieu if that excess leave cannot be taken due to sickness absence.

In Mr Neidel’s case, one of the conclusions was that he was entitled to payment in lieu of the 4 weeks annual leave from his last year of employment. He was not entitled to payment in lieu for the previous years.

As a reminder: The statutory minimum holiday entitlement in Great Britain is 5.6 weeks (28 days) and that can include Bank and public holidays. It is therefore 1.6 weeks above the minimum in the Directive.

This area of employment law has become increasingly complex over the past few years. If you have any questions concerning long-term absence from work and annual leave entitlement please do call our team on 020 3178 5361.

To read the full judgment, please click here.