European Community Case Law

In its ruling of 21-06-2012, the European Court of Justice states that “the point at which [the] temporary incapacity arose is irrelevant. Consequently, the worker is entitled to take paid annual leave which coincides with a period of sick leave at a later point in time, irrespective of the point at which the incapacity for work arose”.

It goes on to say that the new period of leave may be set, as the case may be, “outside the corresponding reference period for annual leave”.

The European Court of Justice further recalls that the right to paid annual leave is a particularly important principle of European Union social law, laid down in the European Union Charter of Fundamental Rights. A right which cannot thus be interpreted “restrictively” in any case.

The issue was raised in the European Court of Justice by the Spanish Supreme Court in the wake of a dispute between the National Association of Large Distribution Companies and the Federation of Trade Union Associations. Spanish law provides that when the period of leave coincides with a period of temporary disability resulting from pregnancy, labour or breastfeeding, employees are entitled to take the leave corresponding to the period of leave for disability at a different point in time. However, it does not govern cases in which the period of leave coincides with a period of disability owing to sick leave.

The issue does not arise in Portugal as Portuguese labour law already makes provision for such a situation, and even the 2003 Labour Code already made provision for this matter in Article 219. Article 244 of the current Labour Code provides that “holiday leave shall not begin or shall be suspended when the employee becomes temporarily disabled owing to illness or some other fact not attributable to him, provided that this is communicated to the employer (…) the holiday leave shall be taken after the end of the disability for the remainder of the scheduled leave, and the period equivalent to the number of days not taken shall be scheduled by agreement or, in the absence of agreement, by the employer, and in the event that it is totally or partially impossible for the employee to take the leave for reasons of disability of the employee, he or she shall be entitled to remuneration for the period of leave not taken or to take such leave by 30 April of the following year and, in any case, to the relevant bonus.”

Cristina Viegas