The Advocate General of the ECJ has given her opinion that workers do accrue the four weeks' EU statutory minimum holiday during sick leave. They cannot take it until they return to work but, if they do not return in the current year, they must be permitted to carry it over to the following leave year (not currently permitted under UK legislation). She also considered that payment in lieu of leave on termination must include any leave accrued but unused due to illness, even where the worker was on sick leave for the full holiday year; payment must be at the normal rate of pay.

This conflicts with the UK Court of Appeal's ruling that a worker is not entitled to statutory holiday in a year throughout which he has been on sick leave and, if terminated in such a year, has no claim to pay in lieu of holiday.

The ECJ will take the Advocate-General's opinion into account but is not bound to follow it. It is unlikely to give its judgment before the Summer. Whatever the outcome, it will not affect employers' freedom to provide that contractual sick pay entitlement in excess of the statutory minimum does not accrue during sick leave. (HMRC v Stringer, Schultz-Hoff v Deutsche Rentenversicherung Bund, ECJ).