Holiday blues

Pereda v Madrid Movilidad SA

Article 7 of the European Working Time Directive gives workers the right to four weeks’ paid annual leave. In Pereda v Madrid Movilidad SA, the European Court of Justice (ECJ) held that although member states can introduce legislation allowing a worker on sick leave to take paid annual leave during sick leave, they must also allow workers to take their annual leave at another time if they wish to do so.

Basic facts

Mr Pereda, a specialist driver for Madrid Movilidad SA, was allocated a period of annual leave from 16 July to 14 August 2007 in accordance with the company’s staff leave schedule for that year.

Following an accident at work on 3 July, he went on sick leave until 13 August, which meant that he only had two days’ holiday left. On 19 September, he asked his employer for a new period of paid annual leave for 2007 (from 15 November to 15 December) on the ground that he had been on sick leave during the original allocation. His employer refused.

Mr Pereda brought a claim in a Spanish court, which referred the matter to the ECJ. It asked whether Article 7 of the European directive on working time gave workers in the same circumstances as Mr Pereda the right to another period of annual leave, even if that meant having to carry forward annual leave into the next holiday year.

Decision of ECJ

The ECJ emphasised that member states cannot opt out of article 7 because the entitlement to paid annual leave is such an important principle of Community social law.

And although member states were allowed to introduce legislation setting down conditions for exercising the right to paid annual leave (including the loss of the right by the end of a leave year or of a carry-over period), they had to ensure that anyone who did lose it had actually had the chance to exercise it in the first place.

Workers could not, therefore, lose the right to paid annual leave at the end of the reference period laid down by national law, if they were on sick leave for the whole or part of the leave year and had not actually had the chance to take it.

This, said the ECJ, was because the whole point of paid annual leave was to enable workers to rest and to enjoy a period of relaxation and leisure. The purpose of sick leave was to allow workers to recover from being ill.

It followed, therefore, that a worker on sick leave during a period of previously scheduled annual leave had the right to take that leave during a period which did not coincide with their sick leave, but only if the worker actually requested it.

The right to reschedule their leave was still subject to the rules and procedures of national law, taking into account the interests of the undertaking itself. However, if the employer could not agree to the worker's request for a new period of annual leave, they had to let them take it at a different time, even though this might mean they had to carry over their leave to the next holiday year.

The Working Time Directive did not, therefore, preclude national legislation or practices which allowed a worker on sick leave to take paid annual leave during that sick leave, but equally that “where that worker does not wish to take annual leave during a period of sick leave, annual leave must be granted to him for a different period”.