Annual leave still accrued during long term sickness

A decision from the European Court of Justice (ECJ) has ruled that workers who experience periods of sickness or disability must not lose their rights to paid annual holiday under the EC Working Time Directive.  This ruling (20 January 2009) came after the House of Lords sought clarification from the ECJ after a series of cases in which the Court of Appeal allowed worker's annual holiday minimum rights to be affected by sick leave. (Stringer v HM Revenue and Customs).

The ECJ ruled that the EC Working Time Directive entitles a worker on long term sick leave to any holiday which accrues during that absence. The ECJ also ruled that if/when the worker is dismissed then he or she is entitled to pay in lieu of any leave accumulated during sickness absence which has not yet been taken. This 'allowance in lieu' should be equivalent to normal pay.

The ECJ noted that:

'A worker does not lose his right to paid annual leave which he has been unable to exercise because of sickness ... he must be compensated for his annual leave not taken.'

The House of Lords will in due course make a judgement in accordance with the ruling and it is thought likely that they will align with the ECJ's ruling.

ECU will monitor the progress of this case for any implications for higher education employers and provide updates.