The Advocate General has today published his much anticipated opinion in Stringer v HMRC (previously known as Ainsworth v HMRC) on whether employees on long-term sick leave are entitled to holiday pay. Bethan Cobner reports.

The following questions were referred to the European Court of Justice in relation to the potential entitlement to sick leave:

		are workers on indefinite sick leave entitled to (i) designate a future period as paid annual leave and (ii) take paid annual leave, during a period that would otherwise be sick leave?
		if a payment is made in lieu of holiday, on termination of employment, are employees on long term sick leave entitled to such a payment and how should any payment be calculated?

The UK government had argued that employees on long term sick leave should not be entitled to paid holiday on the basis that they are not actually working, so there is no ‘work’ for them to take leave from. The Advocate General, whose opinion is usually followed by the European Court of Justice, has decided that:

		a worker on indefinite sick leave is entitled to designate a future period as paid annual leave; but
		they cannot take this leave during a period in which they would otherwise have been on sick leave; and
		when employment is ended, workers are entitled to a payment in lieu of holiday accrued while on sick leave. The calculation of the payment must ensure that the worker receives an amount which is equivalent to their normal pay.

The practical effect of this opinion appears to be that employees on long term sick leave do accrue leave and have a theoretical entitlement to holiday, but they can’t actually take any holiday while they are on sick leave. However, if employment is terminated while an employee is on long term sick leave, they will be entitled to be paid in lieu for any untaken holiday.

It will now be up to the European Court of Justice to make a decision on this case, taking into account the Advocate General’s views in his opinion, and we will update you as soon as the final decision of the Court is published.