legal updates
Friday, 24 Oct 2008
stringer and others v hmrc
The long awaited ruling of the European Court of Justice (“ECJ”) in the case of Stringer and others v HMRC has now been published.
The ECJ has ruled that on a proper interpretation of the Working Time Directive a worker who is on long term sick leave is entitled to any holiday which accrues during his sickness absence. In other words, a worker does not lose his right to be paid annual leave which he has been unable to take because of sickness – however long that period of sickness might be.
The ECJ also ruled that the worker must be compensated for paid annual leave not taken due to long term sickness absence, either in cash if he is dismissed or by paid holiday if he returns to work. This "allowance in lieu" should be equivalent to normal pay.
It is anticipated that the House of Lords, which referred the matter to the ECJ in December 2006, will in due course hand down its judgment in accordance with this ECJ ruling.
Employers must not react to this ruling by dismissing employees on long term sick leave as, apart from anything else, such a knee jerk reaction may leave employers falling foul of disability discrimination laws. Instead employers are advised to carry out a comprehensive review of their policies including their sickness, maternity and holiday policies to ensure there are measures in place to monitor the reasons and lengths of employees’ absences and to ensure employees are not allowed to remain on long term sick indefinitely (subject to any Permanent Health Insurance scheme the employer may provide).
If you would like any further information or advice on these issues, please contact Donna Reynolds.