Employee not entitled to replacement holiday for illness during holiday

Case no. 42/2016
Judgment delivered on 19 January 2017

CO-industri acting for A
vs.
The Ministry of Employment

The case concerned whether the Ministry of Employment was liable for compensation to A, because the right to replacement holiday for illness during holiday following from Article 7(1) of the Working Time Directive according to the case law of the EU Court of Justice had not been implemented in Danish law before A fell ill during his holiday in the summer of 2010. According to the case law of the EU Court of Justice, it is a condition for a member state’s liability that the infringement of the Community provisions is sufficiently serious.

In the Supreme Court’s view, it was natural to interpret the grounds for the Pereda judgment in EU Court of Justice case no. C-277/08 of 10 September 2009 to the effect that it not only covered illness occurring before a holiday, but also cases where an employee falls ill after the holiday has begun. This judgment gave rise to doubt as to the compatibility of the Danish Holiday Act with Article 7(3) of the Directive, which meant that the Danish authorities had to examine as soon as possible whether the Holiday Act should be amended and the amendments implemented. The Supreme Court held that it was justified for the Danish authorities to conduct an investigation, which resulted in a report of September 2010 in which they concluded that the then current Danish scheme would probably be overruled if referred to the EU Court of Justice.

The Supreme Court then found that the Danish authorities should immediately bring the Holiday Act in line with the legal position set out in the Pereda judgment, and that the thus amended Holiday Act should have taken effect on 1 January 2011. However, the Act was only amended in April 2012.

Against this background, the Supreme Court held that the Danish authorities’ infringement of Community law was sufficiently serious, for which reason they were liable for compensation for not having amended the Holiday Act effective from 1 January 2011 to the effect that illness occurring during a holiday entitled the employee to a replacement holiday in accordance with Article 7(1) of the Working Time Directive. However, since A’s illness occurred during his holiday in the summer of 2010, he was not entitled to compensation.

The High Court had reached the same conclusion.