Holiday and sickness The European Court of Justice (ECJ) has been asked to consider whether or not workers on long-term sick leave who have exhausted their occupational sick pay entitlement are entitled to take four weeks’ paid holiday under the Working Time Regulations. In advance of the ECJ’s decision, the Court’s chief legal adviser, the Advocate General (AG), has given their opinion on the two questions referred by the House of Lords. These were: Is a worker on indefinite sick leave permitted to select a future period as paid annual leave and take that paid annual leave, during a period that would otherwise be sick leave; and If an employer pays an allowance in lieu of leave accrued but not taken on termination of employment, where a worker has been absent on sick leave for all or part of the leave year in which the employment ended, are there any requirements regarding payment and calculation? The AG opinion is that a worker on indefinite sick leave can select a future period as paid annual leave, as the right to paid leave is not dependant on an individual’s capacity to work. However, whilst a worker absent on sick leave accrues minimum paid annual leave, he may not take that paid leave during sickness absence, only on his return to work. Where a worker leaves an employment he is entitled to compensatory payment for leave accrued but not taken due to illness, even if the worker was on sick leave for all or part of the leave year in question. In performing the calculation the employer must ensure that the worker receives the equivalent of normal pay. The judges of the ECJ are not obliged to follow this opinion but generally do so, with a decision expected in second half of 2008. Paul Tew, Pay Magazine Snowdrop provides a range of Payroll solutions that are fast, flexible and easy-to-use, to suit the many and varied needs of each organisation. To find out more about the software and services that we provide, please click here >>