Paid Holiday Leave During Sickness Absence - Holiday accrues during long term sick leave, according to Advocate General

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31 January 2008

In the case Commissioners of Inland Revenue v Ainsworth and Others, the Court of Appeal, in April 2005, ruled that there is no obligation for an employer to treat a worker as entitled to paid holiday leave under the WTR rules who

• is on long-term sickness absence, and
  
  
• has been unable to attend work throughout the entire holiday year.

The decision was appealed to the House of Lords where, in October 2006, it was referred to the European Court of Justice (ECJ) for a decision. By that time, the case had been renamed Stringer and Others v HM Revenue and Customs.

On 24 January 2008, Advocate General Trstenjak gave his preliminary Opinion on the two questions referred by the House of Lords, namely:

1. Does the Working Time Directive (WTD) provide that a worker on indefinite sick leave is entitled (1) to designate a future period as paid annual leave, and (2) to take paid annual leave, in either case during a period that would otherwise be sick leave?
   
   
2. If a Member State exercises its discretion under the WTD to replace the minimum period of paid annual leave with an allowance in lieu on termination of employment, in circumstances in which a worker has been absent on sick leave for all or part of the leave year in which the employment relationship is terminated, does the Directive impose any requirements or lay down any criteria as to whether the allowance is to be paid or how it is to be calculated?

The answers to these questions, in the opinion of the Advocate General, are:

1. The existence of the right to paid annual leave cannot be made subject to a worker's capacity for work and therefore, in principle, a worker rendered incapable of work through illness has a corresponding right to annual leave. However, he may not take this leave during a period in which he is otherwise on sick leave.
   
   
2. Where an employment relationship is terminated, workers are in any event entitled to a compensatory payment as a replacement for leave which has been acquired but not taken due to illness. This is also the case where the worker was on sick leave for all or part of the leave year in question. In assessing the amount of this entitlement it is necessary to ensure that the amount of the allowance in lieu that the worker receives is equivalent to that of his normal pay.

The Advocate General's Opinion is no more than an opinion and it is for the ECJ, in the future, to give its definitive ruling on these issues.

...UK Payroll News - Latest

Further information:
Stringer and Others v HM Revenue and Customs

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