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LEGAL UPDATE – Two Advocate General’s Opinions on leave entitlement while off sick

Two Advocate General’s Opinions on leave entitlement while off sick  

The Advocate General (AG) has given her opinion in two important test cases waiting to be heard in the ECJ concerning the treatment of the minimum annual holiday entitlement under the Working Time Directive. In a  UK case, Stringer and ors v HM Revenue and Customs, her view is that those on sick leave still accrue holiday entitlement, but cannot take entitlement or receive payment in lieu while remaining absent. 

In Stringer and ors v HM Revenue and Customs (Case C-520/06), the AG has recommended that the ECJ hold that workers who are absent on sick leave should still accrue entitlement to the minimum annual leave as allowed for by the Working Time Directive, but a worker should not be able to take, and receive payment for, annual leave during a period when he or she is absent through illness. In Schultz-Hoff v Deutsche Rentenversicherung Bund (Case C-350/06), a referral by a German court, the AG took the view that workers on sick leave throughout an entire leave year should be able to take their minimum annual leave on their return to work, even if that occurs in the following leave year. 

The ECJ’s full ruling in both case will follow and it is usual for the AG’s opinion to be followed.

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