Those keeping an eye on the development of European Court of Justice jurisprudence will know that arising from the Stringer case, and other ECJ cases, it has been believed that workers on long term sick leave have an unlimited right to accrue their holidays during the period they are out sick. The Stringer decision has caused consternation in a number of jurisdictions, but has had limited impact in Ireland due to the wording of the Organisation of Working Time Act 1997.

In Ireland, statutory holiday leave only accrues on the basis of time actually worked. Therefore, Irish legislation was out of step with the ECJ line of reasoning.

Under the Vertical Direct effect principle of European Law, European directives can only have direct effect if the directive is sufficiently precise, and even then it can only apply to “emanations of the State”. In essence therefore, notwithstanding the Stringer and other ECJ decisions, private employers in Ireland were under little risk that workers on long term sick leave could enforce holiday rights against them. Such workers could in theory enforce directly against the State, until such time as the State brings domestic legislation into line with the interpretation of the European Court of Justice. The matter is of course different for State employees, and also for any employees who have some sort of contractual rights to holidays whilst on sick leave.

Recent case law has once again overtaken events. In the case of KHS v Winfreid Schulte, delivered on 7 July 2011, the Advocate General has issued an opinion that workers can accrue sick leave for no longer than 18 months after the end of the leave year in which the holiday accrues. This opinion, if followed by the full Court (Advocate General opinions are not the final decision, but they are usually, though not always, followed by the Court in reaching its judgement) would put a ceiling on the potential risk to employers. The reasoning of the Advocate General was that to allow holidays accrue for an indefinite period during long term sick leave would incentivise employers to terminate employees on long term sick leave. The Advocate General was also of the opinion that the recuperative benefits attaching to holidays after such a long period of sick leave does not increase in proportion to its duration. In other words, several years' worth of holidays are not as much use to an employee (from a health and safety point of view) proportionately, as they would be if the employee was attending work and getting a year’s portion of holidays each year.

As set out above, Irish law is not in compliance with the working time directive, and therefore for the moment at least, private sector employers do not have to provide for holidays whilst an employee is on sick leave, until such time as the Organisation of Working Time Act 1997 is amended.

AG's Opinion:
http://bit.ly/pFQEKi