The Advocate General has disagreed with the Court of Appeal’s finding in Stringer v HMRC that the right to statutory (not contractual) paid holiday does not accrue to an employee absent on long term sickness. The A-G instead found that the right to statutory paid annual leave should not be made subject to a worker’s capacity to work; however he may not take this holiday leave during a time when he is on sick leave. The distinction should be made between the statutory minimum 4 week entitlement to paid holiday and any additional contractual leave. As the ECJ are likely to follow the A-G’s opinion employers would be wise to ensure that any holiday entitlement in excess of the statutory minimum does not accrue during long term sickness.

The text of the A-G’s opinion is available on www.curia.europa.eu and by carrying out a case search under case reference C-520/06.