The House of Lords has today (30 October) referred the case of Ainsworth v Commissioners of the Inland Revenue to the European Court of Justice.
The case concerns the paid holiday entitlement of workers who have been off sick.
It has been backed throughout by the Public and Commercial Services union (PCS) which took the case to the House of Lords after the Court of Appeal ruled that a worker who is absent on long-term sick leave loses their holiday entitlement.
The Court of Appeal agreed with the Inland Revenue, the employer, that workers on long-term sick leave forfeit the right to compensation for holiday not taken if that worker’s employment is terminated during the leave year.
The Law Lords referred the case to the ECJ in the light of a recent German court’s decision to refer the case of Schultz-Hoff v Deutsche Rentenversicherung Bund. That case centres on whether Article 7 of the Working Time Directive means that workers must receive minimum annual paid leave of four weeks during a long period of incapacity for work.
Although the German reference to the ECJ is concerned with German case law and the relevant collective agreement there, the Law Lords considered that guidance could be sought by joining Ainsworth with it.
The reference to the ECJ means that all other employment tribunal and employment appeal tribunal cases currently stayed, waiting for the outcome of the appeal to the House of Lords, will have to wait until the ECJ has ruled.
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