Sick leave and holiday

There have been a number of important ECJ decisions interpreting the relationship between sickness absence and statutory holiday entitlement under the WTR. The first of these is Stringer v HM Revenue and Customs, C-520/06) (Stringer). In this case, the ECJ decided that workers accrue holiday while on long-term sick leave and must be allowed to take it on their return to work, or be paid in lieu of untaken leave if their employment ends. Employees on long-term sick leave who are owed holiday pay can bring a claim for the unlawful deduction of wages under the Employment Rights Act 1996 (HM Revenue and Customs v Stringer and others [2009] UKHL 31).

The second important ECJ decision is Pereda v Madrid Movilidad SA [2009] IRLR 959. This case looked at what happens where an employee falls ill while on holiday. The ECJ concluded that an employer cannot force a worker to take annual leave when off work sick. Instead, workers must be allowed to carry over their holiday. In principle, this means that workers who fall ill while on holiday must be allowed to re-designate their statutory annual leave as sick leave and to carry forward the unused holiday to take when they are fit to work.

This was confirmed in the case of ANGED v FASGA, 21 June 2012 (C-78/11), a case brought by Spanish trade unions against a department store chain that was refusing to allow workers to re-designate annual leave as sick leave when they fell sick in the middle of their holiday.