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Holidays & Sick Leave

The issue of whether employees are entitled to continue to accrue their holidays during periods of sick leave has been one of much debate over the past few years. Last year there were three important decisions which provided some clarity on this issue.

Stringer and others v HM Revenue & Customs; Schultz-Hoff v Deutsche Rentenversicherung Bund [2009] IRLR 214.

The ECJ have confirmed that workers on sick leave continue to accrue holiday rights. It is for member states to decide whether workers can actually take their statutory holiday during a period of sick leave. However, if workers are prevented from taking their holiday because of sickness, they must be allowed to take it following their return to work, even if this means carrying it over to the next leave year.

The question of whether an employee could take holidays during a period of sick leave was clarified in the case of HM Revenue & Customs v Stringer and others [2009] IRLR 677. The House of Lords held that the Working Time Regulations expressly rules out carrying over of statutory holiday to the next leave year. Therefore, workers on long-term sick leave can take statutory holidays during sick leave and be paid for it.

The House of Lords also held that workers can bring claims for unpaid statutory holiday pay not only under regulation 30 of the Working Time Regulations, but also under the deduction from wages provisions of Employment Rights Act 1996. This means that workers might be able to recover unpaid holiday pay going back several years, which they otherwise might not be able to claim under the Working Time Regulations.

Pereda v Madrid Movilidad SA (C-277/08) [2009] IRLR 959. In this case the ECJ held that where a worker's pre-booked statutory holiday coincides with a period of sick leave, the worker has the option to change their holiday to another date. So, although workers may be allowed to take holiday during sick leave, if they donít want to take their holiday then, they must be allowed to take it at another time. This is the case even if it means carrying leave over to the next leave year.

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