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Does sickness entitle employees to replacement holiday?

November 2009 - Employment. Legal Developments by Norrbom Vinding Law Firm, member of ius laboris.

More articles by this firm.

A recent ECJ judgment interprets the rules on replacement holiday in the event of sickness, but does not definitively answer the question of whether employees are entitled to replacement holiday if they fall ill during their holiday.

All employees are entitled to at least 4 weeks of paid holiday each year. But EU law does not expressly address the issue of what happens if an employee falls ill in connection with his holiday. And nor does the recent ECJ ruling.

A Spanish court had asked the European Court of Justice for a preliminary ruling on how to interpret the Working Time Directive. The main proceedings concerned the question of whether an employee was entitled to replacement holiday after falling ill before his scheduled holiday and only getting well near the end of his scheduled holiday.

The ECJ stated in its grounds that the Working Time Directive prevents member states from adopting national provisions which provide that employees are not entitled to replacement holiday if a period of sickness coincides with their holiday. As a starting point, employees are thus entitled to replacement holiday.

Today, this is also true under the Danish Holiday Act. All Danish employees are entitled under s 13(2) of that Act to take holiday at another time if they fall ill before their holiday. But the extent to which employees are entitled to replacement holiday if they fall ill during their holiday has been much discussed. The recent ECJ ruling does not provide a definitive answer to this question.

 

Norrbom Vinding notes: 

  • that like the Spanish employee in the above case, Danish employees are entitled to replacement holiday if they fall ill before their holiday begins;

  • that it cannot be inferred from the grounds of the ruling that employees are entitled to replacement holiday in situations where they fall ill after beginning their holiday; and

  • that there is therefore no immediate need to amend Danish law as a result of the ruling, as also concluded in a recent memorandum from the Labour Market Committee of the Danish Parliament.

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