Workers entitled to claim back holidays lost to sickness

On 21 June 2012, the European Court of Justice (hereafter referred to as the ‘ECJ’) reaffirmed its earlier decision from 2009 whereby workers who fall ill during their annual leave are entitled to recover them by taking paid time off at a later date.

In this judgment, concerning a case brought forward by Spanish trade unions, the ECJ ruled that entitlement to paid leave must be regarded as an important principle of EU social law and that workers who are on vacation should in all circumstances be able to rest and enjoy a period of relaxation and leisure.

In this new judgment, the ECJ made it very clear that, contrary to what was generally interpreted from the 2009 decision, the point at which temporary incapacity occurs is irrelevant. Hence, a worker is always entitled to recover paid annual leave which coincides with a period of sick leave, regardless of when the illness occurred.

Consequences for Belgian legislation

This decision will have consequences for Belgian law. At present, Belgian legislation (1) states that, for workers who become ill when on holiday, the days on which they are sick are still considered as vacation days (lost vacation cannot be taken at a later stage). Only those who become ill before the start of a holiday period are entitled to take corresponding annual leave at a later date.

Although, at this point, Belgian legislation still needs to be adapted employees will already, be able to postpone their paid annual leave if it coincides with a period of sick leave, given the court’s decision.

Implications for employers in Belgium

This judgment burdens Belgian employers with:

  • additional costs, linked to double salary payment (guaranteed salary paid during illness and salary paid during postponed annual leave);
  • a more complex work scheduling (vacation planning, division of workload, etc.); and
  • an increased risk of abuse (f.e. if illness occurs abroad while on vacation, control becomes difficult or even impossible).

However, it should be noted that all rules with regard to reporting and verification of illness continue to apply. This means that, in practice, an employee has the obligation to timely inform his employer and provide a medical certificate. The employer also maintains the right to send a doctor to check on the employee’s illness. If the employee does not comply with these requirements or if the doctor sent by the employer does not confirm the illness, the guaranteed salary of the employee is compromised and/or the employee may be subject to disciplinary sanctions.