The ECJ’s Advocate General has recently given her opinion in the co-joined cases of Stringer and ors. v HM Customs (Case C-520/06) and Schultz-Hoff v Deutsche Rentenversicherung Bund (Case C-350/06). Both cases concern the issue of whether workers on long-term sick leave are entitled to paid holiday under the Working Time Regulations. They were referred separately to the European Court of Justice but are being heard together. The Advocate General has given her opinion ahead of the ECJ hearing later this year.
In Stringer, the AG has said that workers should accrue working time leave even when absent on long-term sick leave but that they are not entitled to take the accrued leave whilst off sick. Furthermore, when an employment relationship is terminated, a worker on long-term sick leave is entitled to a payment in lieu of accrued but untaken holiday (irrespective of whether the worker was on sick leave for all or part of the year in question) calculated on the basis of his normal pay.
In Schultz-Hoff, the AG has said that accrued working time leave not taken due to sickness can be taken at a later date (even if it is during the next leave year – presumably when the worker returns to work) and, as in Stringer, that a worker is entitled to a payment in lieu on termination in respect of untaken leave due to sickness (in either case, even if the worker is absent for all of the leave year in question).
The ECJ is not obliged to follow the AG’s opinion, but often does. If it does, employers may incur increased costs in relation to workers who return from long-term sick leave or whose employment is terminated at the end of a period of long-term sick leave.