The Stringer saga continues

In a broadening of the principle in Stringer (as reported in our Alerts on 22 January 2009 and 10 June 2009) - which established that workers on sick leave who have not had the opportunity to take holiday may carry it over to the next leave year - the European Court of Justice (ECJ) has held in another case that a worker who falls ill when on holiday can choose to take the holiday lost to sickness at a different time - including in the next leave year.

While Stringer dealt with workers on long-term sickness absence, the current case, Pereda v Madrid Movilidad SA, concerned a worker who had an accident just before his scheduled holiday, which meant that he was sick for most of his holiday period. The ECJ said that while national law may allow a worker to take holiday during a period of sick leave, it cannot preclude that worker from taking it at a different time if he or she chooses, even if the holiday has been pre-booked.

Currently, employers are not obliged to reschedule holidays if a worker happens to fall ill during the same period. However, this ruling will compel employers to grant a new period of holiday for workers who lose holiday to unexpected sickness, if the worker so requests. Whether or not the worker will get paid for the period they elect to take as sick leave will depend on the employer's sickness policy. Following the Stringer judgment, many employers felt the best solution for workers on long-term sick leave was to allocate part of that leave as holiday, to prevent an unmanageable build up of holiday leave. This case would appear to make it unlawful to do so, unless the worker agrees, and so they will have to be allowed to carry over untaken holiday in such cases.

It remains to be seen whether the Government will now be forced to make changes to the Working Time Regulations but in the meantime, employers are well advised to review their sickness and holiday policies to ensure compliance.