The long awaited Advocate General's Opinion in Stringer v HMRC has concluded that although paid holiday does accrue during sick leave, it cannot be taken during sick leave. Therefore employees cannot designate a period of sick leave as "holiday" and get paid holiday pay for it.
The AG also stated that accrued holiday pay must be paid on the termination of employment even when the employee has been on sick leave for all of the relevant holiday year.
The AG's Opinion makes it clear that the right to paid holiday is not dependent on whether an employee has been working but is a fundamental right enshrined in Community law. The UK's position that the Working Time Directive, being the relevant community law, was intended to protect worker's health and therefore employees on sick leave did not need the break from work accorded by holiday leave, was not accepted.
The ECJ Judgment, which often follows the AG's opinion, is expected in about 6 months time. It is hoped that the ECJ will take a pragmatic view about the payment of holiday pay on termination of employment. If not there is a risk that employers will seek to minimise their costs by terminating the employment contracts of those on long term sick leave earlier than they might otherwise have done.
