In KHS AG v Schulte the Advocate General has delivered an opinion that under EU law, workers on long-term sick leave do not have the right to accumulate paid annual leave, or payments in lieu of that leave, without any time limitation.
Mr Schulte was unable to take leave for 2 years due to ill health. He then claimed 70 days’ pay in lieu when he was dismissed. The German Court asked the ECJ whether EU law allows workers to accumulate holiday entitlement over several years because of long-term illness and whether the Member States can set a time-limit of 18 months for those entitlements.
The Advocate General (AG) held that: (i) accumulation of entitlements to leave or allowances in lieu, without any limitation in time, is not required by EU law; the purpose of leave is to take a rest from work and that cannot be achieved if that leave is not taken until years later; and (ii) a time-limit of 18 months for accumulated entitlements achieves the purpose of EU law as the employee would have up to two and a half years to take leave entitlement.
The ECJ is not obliged to follow the AG’s opinion, but given that other ECJ cases have not answered the question as to how long can leave be allowed to accumulate where long-term sickness is involved straddling a number of years, then the outcome has considerable practical implications.
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