2 April 2009
Stringer and others v HMRC involves an important ruling on the issue of accrued holiday pay during periods of sickness and has been widely criticised by employers.
In the case, which was decided together with a German case, the claimants were former employees of HMRC.
One requested annual leave during sickness absence, which HMRC refused.
The others were dismissed following long-term sickness absence, and claimed payment in lieu of holiday which they claimed had accrued but was not taken.
The claims were made under the working time regulations 1998 (WTR), the UK legislation which implements the European working time directive.
The claimants won in the employment tribunal but HMRC appealed and the decision found its way to the House of Lords.
In December 2006, the House of Lords referred the case to the European Court of Justice (ECJ) to clarify some points of law.
In giving its decision the ECJ made various findings and observations about the directive and the rights it provides:
In summary, the decision means:
The Stringer case will now return to the House of Lords, which will determine how the WTR can be interpreted in line with the decision.
The judgment seems to require that employers permit workers on long-term sick leave to carry over their untaken annual leave into the following leave year.
However, the WTR provide that the basic four weeks’ leave (but not the additional leave recently granted to workers) can only be taken in the leave year in respect of which it is due and cannot be carried over.
The likely decision of the House of Lords would be to allow workers on long-term sick leave to take a period of paid annual leave before the expiry of the current leave year.
Alternatively, the Lords could determine that the WTR will need to be amended to allow untaken annual leave to be carried over.
In the latter case, pending any amendment, public sector workers could in the meantime rely directly on the directive as interpreted in Stringer to avoid the restrictions of the WTR on carrying over leave.
This is not intended as legal advice on individual cases. With thanks to Russell Jones & Walker, part of Slater & Gordon Lawyers.