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Sick pay & all ancillary beneifits DO accrue during sickness *Correct as at Feb 2014*

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Statutory holiday entitlement under the Working Time Regulations 1998 continues to accrue during sick leave.

The House of Lords in HMRC v Stringer [2009] IRLR 677overturned the Court of Appeal's ruling that those on long term sick leave did not accrue holiday entitlement. This followed a referral of a number of questions to the ECJ [2009] IRLR 214 .

The European Court of Justice (ECJ) held that a worker on sick leave does accrue holiday entitlement. When the matter returned to the House of Lords, the employer conceded this point and the House of Lords specifically overturned the Court of Appeal's decision to the contrary.

This meant that the previous decision of the employment appeal tribunal (EAT) in Ainsworth v IRC (EAT unreported), which was the previous name for Stringer, was restored.

The decision of the EAT was that it could not overturn the previous decisions of the EAT on the issues raised in Stringer. These are Kigass Aero Components v Brown [2002] IRLR 312, List Design Group v Douglas and Catley [2003] IRLR 14 and Canada Life v Gray and Farrar (EAT unreported).

On the question of accrual of annual leave during a period of sick leave, Kigass was clear that annual leave did accrue.

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I refer to the case of Nottingham County Council v Meikle (2004 IRLR 703 CA)

“A duty to make reasonable adjustments can include a duty to consider paying employees' full pay during sickness absence regardless of their contractual sick pay entitlements.”

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