The long-running saga about whether workers on sick leave are entitled to paid annual leave is one step nearer to being resolved. The European Court of Justice ruled earlier this week in Stringer, Ainsworth and others v Commissioners of Inland Revenue (Case No. C-350/06) that workers do not lose their right to take paid holiday just because they have been off sick.
The Public and Commercial Services Union instructed Thompsons to take the case to the House of Lords after the Court of Appeal ruled that a worker on long-term sick leave did not have a right to holiday entitlement.
In its judgment, the ECJ said that the right to sick leave was not governed by community law, but by member states themselves (unlike the right to annual leave which is a community right). However, it also ruled that if member states decide to prohibit paid annual leave during the actual period of sick leave, they must allow workers to take their leave some other time.
If someone is off sick, the Court said that member states cannot require them to have actually worked during that year to accrue their annual leave entitlement. They can only deny paid holiday at the end of a leave year or of a carry-over period if the worker concerned had had the chance to exercise their right to the leave.
The Court also ruled that workers do not lose their right to paid annual leave at the end of the leave year (or of a carry-over period) if they had been off sick for the whole or part of the leave year and lost their job at the end of it, if their incapacity was the reason for losing their job.
And if the worker’s employment does come to an end, the ECJ said that they are still entitled to an allowance in lieu of the leave that they could not take and employers must ignore sickness absence when calculating what they are owed.
We will cover this case in more detail in a future LELR.
To read the decision, go to: http://curia.europa.eu