There has long been uncertainty about the statutory holiday rights of workers on long-term sick leave. Since the decision of the House of Lords in Stringer we know that they continue to accrue these rights while on sick leave, but there have been a number of unanswered questions about how they access these rights, and whether they can be carried forward indefinitely.
No need to ask
One question that had not been answered definitively was whether workers on sick leave had to request holiday, in the same way as would have been necessary had they been at work, in order to preserve their entitlement. The latest decision of the Employment Appeal Tribunal on this point says that it is not normally necessary for a sick worker to request leave. However we know from other cases that with the employer’s agreement it is possible to take paid statutory holiday concurrently with sick leave if that is what the worker wants.
Accrual may be limited to 18 months
Another unanswered question was how long the statutory holiday entitlement would continue to accrue when a worker is off sick. For example, is it possible to carry more than one year’s entitlement forward?
The latest reference to the European Court of Justice on this topic involves a German worker, Winfried Shulte. His contact of employment was ended in 2008 after a period of continuous sick leave, going back to until 2003. He brought a claim for a payment in lieu of his accrued holiday entitlement for the years 2006 to 2008. The referring court wanted to know if the Working Time Directive had to be interpreted as allowing holiday entitlement to accrue indefinitely during a period of longterm sickness. If not, it asked whether a time limit of 18 months after the end of the reference period could be fixed, after which any accrued rights would be lost.
The advocate general has concluded that while special treatment needs to be accorded to workers who are on continuous sick leave right up to the point their employment is terminated, member states were not precluded from fixing a period after the end of the leave year in which accumulated rights need to be exercised or lost.
It remains to be seen whether the ECJ will adopt the advocate general’s opinion, but her thinking will need to be fed into the Government’s Consultation on Modern Workplaces which closed on 8 August. The Consultation included a proposal to amend the WTR to allow workers on long-term sick leave to carry forward up to four weeks’ untaken holiday into the following leave year. That would give them a year’s grace to take their statutory holidays, which may not be quite long enough to comply with EU law.
In the meantime it is not clear how workers can enforce their rights deriving from the Directive. Some older case law states that, unlike certain equality rights, it is not directly effective – in other words it has no force until correctly enacted into domestic law. There is another recent advocate general’s opinion, this time in a French case, which confirms this view. On that basis workers are left with a claim against the state for failing to implement the Directive, unless they can argue that the domestic legislation can be interpreted compatibly. This is likely to difficult in the UK, since the Working Time Regulations contain an express prohibition on carrying forward leave. That has not prevented employment tribunals from coming up with a number of different ingenious interpretations to allow workers to carry forward their entitlement. We will need to wait until a similar case is heard by an appeal court for clarification of the law.