Lords refer question of sick leave and holiday to the ECJ

The European Court of Justice (ECJ) is to decide whether holiday continues to accrue while a worker is on long-term sick leave.

In April of last year, the Court of Appeal overturned an Employment Appeal Tribunal decision by ruling in the case of Commissioners of Inland Revenue v Ainsworth & others [2005] EWCA Civ 532) that such workers should not be able to build up annual leave (see Labour Research, June 2005).

All workers are entitled to at least four weeks' paid annual leave under the Working Time Regulations 1998 (WTR). But if they are not required to attend work because they are off sick, the court reasoned, there is no work to take "leave" from and they have no need of the health and safety protection that the WTR are intended to provide.

Backed by the PCS civil service union, the Ainsworth employees appealed to the House of Lords, who were to hear the case last month. But the Lords have now asked the ECJ for a ruling on the interpretation of the European law that is implemented by the WTR.