Sickness At The Heart of Europe (1)

Long term sick absentees from work are a problem. It’s a problem for them, because they’re sat at home generally stressed out about the fact they’ve a job they haven’t seen for months or years – a tie that sometimes can prevent recovery. It’s a problem for the state, which is contributing to their SSP and subsequent incapacity benefit. It’s a problem for the employer, who would rather like to sever the relationship, appoint someone else permanently to the post, and get on with it.

So imagine the ire of employers when it was suggested a couple of years ago that if you were on the sick then you should still get all your holiday pay each year. Example – Bob goes off sick in December 2005. His holiday year is January to December. In November 2006 he rings up his boss and asks to take his WTR-guaranteed 4.8 weeks’ holiday for the last 4.8 weeks of the year and be paid for them. The employer is cross, as if this were correct he’d have to pay Bob holiday pay for a year when he didn’t derive any benefit from employing Bob whatsoever. A similar example would be if Bob gave his notice towards the end of 2006, and asked to be paid in lieu of his untaken holiday.

The Court of Appeal all the way back in 2005 decided this was ridiculous, and in the case of Ainsworth brokered a kind of compromise whereby if anyone didn’t work at all during a holiday year, then they weren’t a worker for the purposes of the Working Time Regs and didn’t accrue an entitlement to annual leave. This remains the domestic position for the moment, and current advice to employers is that even if Bob just comes in for one week of the year then he accrues leave for the rest of the year just as if he’d been at work.

The whole mess (now renamed Stringer) was referred to the ECJ by the House of Lords, and we have now had the opinion of the Advocate General. The AG’s report is not binding, but acts as an expert opinion that is usually followed by the whole court.

In plain English, it provides:

  • You accrue leave when you’re off sick;
  • But you can’t take it when you’re off sick;
  • But you can get a payment in lieu of holiday when you leave.

At least, I think that’s what it means. Daniel Barnett has described the opinion as “arid – verging on incomprehensible” and certainly it makes a typical UK judgment (even a Scottish one) look like the paragon of clarity. I’m no expert on the workings of the European system, but it would appear that all of the parties’ submissions have been translated into German for the AG , and his opinion then written in German and translated into English. Honestly, I’m not being all Daily Mail about this, but surely an AG considering a UK reference ought to have the English fluency to deal with submissions without recourse to translation, and then write his opinion in English. This is simply a practical consideration: the Chinese whispers effect of translation back and forth surely comes with risks of imprecision or missing the point; it certainly makes it a nightmare to read.

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