The CJEU has confirmed that employees on sick (or, in this case, on convalescence leave) who have not had the opportunity to take annual leave under the OWT Directive must be permitted to take that leave at another time, even if it means carrying that leave forward to another leave year.
The claimant is a teacher at Rzeplin Primary School. She was granted convalescence leave by her employer, pursuant to Article 73 of the Polish Teachers’ Charter, in order to follow a course of treatment prescribed by a doctor.
There is nothing particularly new here, and it matters not that the annual leave may have been scheduled in advance of any period of sickness or convalescence, provided the purpose of convalescence is different to that for annual leave: "... the Court has concluded [in previous cases] that a worker who is on sick leave during a period of previously scheduled annual leave has the right, at his request and in order that he may actually use his annual leave, to take that leave during a period which does not coincide with the period of sick leave (see judgments of 10 September 2009 in Vicente Pereda, C‑277/08, EU:C:2009:542, paragraph 22, and of 21 June 2012 in ANGED, C‑78/11, EU:C:2012:372, paragraph 20)."
Is the purpose of convalescence leave the same as that for annual leave, i.e. rest and relaxation? That is for the national courts in Poland to decide. The Court again tied in the previously established case law, making this particular case a useful summary of where were are in relation to annual leave rights under the Directive:
"As is clear from the Court’s case-law, while the positive effect of paid annual leave for the safety and health of the worker is deployed fully if it is taken in the year prescribed for that purpose, namely the current year, the significance of that rest period in that regard remains if it is taken during a later period (see judgments of 6 April 2006 in Federatie Nederlandse Vakbeweging, C‑124/05, EU:C:2006:244, paragraph 30, and of 20 January 2009 in Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 30)."
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