Holidays and sickness absence

What happens when a worker goes sick while on paid leave, or cannot use their leave entitlement because they are off sick, is affected by European and UK laws on working time and recent rulings by the Court of Justice of the European Union (CJEU), as well as whatever is in their contract of employment.

Through two main rulings, (Stringer and Others v Her Majesty’s Revenue and Customs, CJEU case C-520/06, joined with Schultz-Hoff v Deutsche Rentenversicherung Bund, C-350/06; and Pereda v Madrid Movilidad SA, ECJ case C-277/08), the court established the following principles (over which the UK government has been conducting a long-running but uncompleted consultation called Modern Workplaces):

• workers continue to accrue annual leave entitlement during sickness absence (Stringer);

• workers can choose to take annual leave at the same time as being absent due to sickness (Stringer);

• workers whose employment terminates in a year during which they have been away from work due to sickness are entitled to the same termination payment for untaken annual leave as any other worker (Stringer);

• workers who fall sick during scheduled annual leave can reschedule the annual leave within the same leave year (Pereda); and

• workers who were unable to take annual leave due to sickness absence and who have not had the opportunity to take it again within the same leave year must be able to carry it forward into the next leave year (Pereda).