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In recent months, much publicity has been given to the long-running case Stringer v HMRC, which established that employees on long-term sick leave whose entitlement to sick pay has been exhausted can nevertheless still accrue holiday leave. They can take this leave when they return to work, or alternatively they may be paid in lieu of holiday when their employment terminates.

What about employees who are taking holiday but fall sick? It has always been left to an employer's discretion whether to convert the holiday leave to sick leave in these circumstances, unless the contract of employment specifically covers it. News of a ruling by the European Court of Justice has now emerged, and employers may not like it.

The Spanish employee in question was injured shortly before his holiday leave was due to start. The Court decided that he should have been allowed to reschedule his holiday. Importantly, part of the judgement stated that a worker who does not wish to take annual leave during a period of sick leave must be granted that annual leave for a different period. This means that even an employee who falls sick after the holiday has started will be entitled to take holiday at another time.

European law does not usually have direct effect in the UK but needs to be implemented by the introduction of UK law. We await further developments.

15 September 2009