The case of HM Revenue & Customs v Stringer has been referred by the House of Lords to the European Court of Justice. The issue is whether a worker on long-term sick leave can accrue paid holiday during absence under the Working Time Regulations 1998.

The claimants had been off work on long-term sick leave and had exhausted their right to contractual and statutory sick pay. At the employment tribunal and the EAT the claimants were successful in their argument that they were entitled to holiday pay under the Regulations, despite having been on sick leave throughout the holiday year.

The Court of Appeal decided (reported under the title of Ainsworth v IRC) that the tribunal and EAT had focussed too much on the definition of worker in the Regulations and should have spent more time interpreting the meaning of the word “leave”. The Court found that allowing employees to point to an arbitrary part of their long-term sick leave in order to declare it a notional holiday did not protect the health and safety of workers, and therefore (taking a purposive approach) was not what the Regulations were intended to achieve.

The ECJ will be hearing the case together with a German case which raises similar issues. As yet, there is no indication as to when the case is likely to be heard.

HM Revenue & Customs v Stringer