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Will accrued annual leave untaken by sick workers be unlimited?

BY Daniel Gorry
Employment Law & HR
BG Purple

LAWmail readers may remember that important decisions of the European Court (Stringer, Schultz-Hoff) in 2009 raised the problem of unlimited accrual of annual leave by workers on long term sick leave and the spectre of untaken leave being carried forward into subsequent leave years on an unlimited basis.

In a new European Court of Justice case, KHS AG v Schulte, the Advocate General has given the opinion that Member States may provide for holiday entitlement accrued by workers on long-term sick leave to expire no earlier than 18 months after the end of the holiday year in which it arises.

Effectively the AG is suggesting that the ECJ 's decision in the Schultz-Hoff case – which appeared to rule out any expiry of annual leave entitlement that a worker has not been able to exercise because of sickness - should not be interpreted quite so widely. The AG's opinion is not binding but will be highly persuasive when the ECJ makes a final decision in the case.

We will keep you posted as the situation develops. But, meanwhile, speak to your LAW Legal Manager if you have any long term sickness cases which are giving rise to these issues.

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