In TSN v Hyvinvointialan, the European Court of Justice has provided that, where an employee has been off sick and unable to take their holiday, employers are only required to allow employees to carry over the minimum holiday entitlement under the Working Time Directive. This minimum holiday requirement is currently four weeks per year.
UK law provides a more generous minimum annual leave allowance of 5.6 weeks (28 days including bank holidays). The judgment confirms that EU nations are able to apply their own laws to annual leave granted beyond the minimum required by the Working Time Directive, which is 1.6 weeks for the UK.
Therefore, unless there is an contractual arrangement that states otherwise, there is no right for employees to carry over any more than four weeks of statutory holiday. UK employees will lose the extra 1.6 weeks if they are prevented from taking their minimum leave due to sickness.
This is not a change in the domestic position, as the same decision was reached in the UK Employment Appeal Tribunal in the 2012 case Sood Enterprises Ltd v Healy. However, it is useful for employers that the position has been clarified and confirmed at European level. Employers should check their employment contracts and holiday policies to ensure that they are up to date and reflect the approach to carrying over holiday entitlement the employer wishes to take.