Categories: General Date: Feb 23, 2009 Title: European Court of Justice Ruling on Sick Leave
A recent ruling by the European Court of Justice (ECJ) has altered the Annual Leave entitlements for staff on long term sick leave. This case is likely to have major implications for Member States and Employers. Many businesses (both Public and Private) have employees on long term sick leave, however these employees are now likely to claim back holiday pay!
Currently under Irish law, the employer determines when annual leave is to be taken. Currently Irish Employees are entitled to annual leave as follows:
1. Four working weeks leave, in any leave year in which he/she works at least 1,365 hours: or
2. One third of a working week for each month in the leave year in which he/she works at least 117 hours: or
3. 8% of the hours he/she actually worked in a leave year up to a maximum of four working weeks.
This means that when an employee is sick for the entirety of the leave year, they are not entitled to any annual leave, as they did not qualify under any of the above criteria for any leave time.
However a recent ruling of the ECJ may change this situation. In the joined cases of Schultz-Hoff –v- Deutsche Rentenversicherung Bund and Stringer and Others –v- Her Majesty’s Revenue and Customs, the ECJ has made the following findings:
This case is likely to have major implications for Member States and for Employers. Many businesses (both Public and Private) have employees on long term sick leave, however these employees are now likely to claim back holiday pay! To reduce the potential impact of this ruling, employers should:
1. Annual leave must continue to accrue during sick leave, but the State is not prevented from legislating that the leave may not be taken during the period of absence on sick leave.
2. An employee who has not had to opportunity to take the leave cannot have the leave extinguished, even if any carry forward period has expired.
3. Employees who have not taken their annual leave are entitled to be paid in lieu for this leave at the time of their termination at their normal remuneration rate.