One more step by the Council to comply with the law on sick leave
E., an official of the Council and a member of Union Syndicale, was on sick leave between the beginning of 2016 and the end of 2017. Obviously, she was unable to benefit from most of her annual leave entitlements for these two years for formal reasons only.
Since the Strack/Commission case, the Council, like the other institutions, has allowed more than 12 days of leave to be carried over to the following year, if they could not be taken for reasons of sick leave, in application of directive 2003/88/EC (it is through this judgment that the Court of First Instance will, for the first time, rule that the provisions of these general directives are applicable to officials and other servants, if they are more favourable than the Staff Regulations). The Court of First Instance also enshrined the importance of the effective implementation of the right to leave.
Although the principle thus seems obvious and enshrined, the Council is going backwards, and only at the speed at which it is being forced to do so.
Although the Council now recognises the right of an official or servant to claim sick leave as a valid reason, in the same way as service constraints, for carrying over more than the 12 days of annual leave to the following year N+1, it nevertheless applies the same administrative deadlines for making the request: the person concerned must make a reasoned request by 15 February of year N+1 at the latest. If this makes sense for reasons of service constraint, it is obvious that such a fixed deadline is meaningless in cases of sick leave. Indeed, who guarantees that the sick person will be back at work before 15 February?
What happened in the case presented to Union Syndicale?
E. requested, before 15 February 2018, the postponement of annual leave not taken in the years 2016 and 2017. In response, it was accepted the postponement for the year 2017, but was refused the postponement of days for the year 2016, on the grounds that it would have exceeded the deadline set by the Council’s internal rules.
Union Syndicale supported her in contesting this decision, through a complaint under Article 90, paragraph 2 of the Staff Regulations. We argued that the interpretation of the directive and the Strack/Commission ruling, defended by the Council, was too restrictive, and that our member was unable to respect this arbitrary deadline, which was contrary to the effective implementation by the institution of the right to annual leave, even though it was recognised by the Court of First Instance.
The Board ruled in favour of our member, crediting her with her lost annual leave for 2016.
We obviously welcome this favourable decision by the employer. However, we deplore the general problem that necessitated this claim: the attitude, which is too restrictive to comply with the case law, persists:
Firstly, because the Council does not fail to point out that its decision applies only to this individual case, and is not of a general nature;
Secondly, because the Council does not draw the consequence of abolishing the arbitrary deadline of 15 February for requests for postponement of leave in the event of absence due to illness. The next colleague in the same situation will again have to lodge a complaint against an unfavourable decision, in accordance with the procedures in force… Why would the Council not automatically grant a postponement of annual leave in the event of long periods of absence due to illness?
And finally, because the Council still refuses to consider maternity, family or parental leave as valid grounds for postponing annual leave.
Union Syndicale calls on the Council to draw all the consequences from the current case law of the Court of the Union and to stop depriving colleagues of their rights under Directive 2003/88/EC.