That's interesting guidance from shoosmiths abcmum. The CIPD has taken a different line and says it is unlikely to affect workers on maternity leave at the moment.
Sorry for cut and paste but you need a log on to see the link to this
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In Stringer the ECJ has said that under the Directive:
Workers on sick leave can accrue the four weeks? paid holiday while they are on long-term sick leave(This does not apply to all of the 28 days applicable under the UK legislation).
Workers must be allowed to take this accrued holiday on their return to work.
Any national rule which prevents workers actually taking paid leave during sick leave is permissible, as long as the worker then has the right to take their leave at another time (that is when they return). Similarly a national rule which allows workers to take paid annual leave during sick leave is also allowed.
It is not lawful to provide that the right to annual leave is lost at the end of a leave year where the worker has been on sick leave.
Where the employment relationship is terminated, workers are entitled to take the leave or to any pay in lieu of the holiday which was not taken due to illness. This is the case even where the worker was on sick leave for all or part of the leave year in question.
Accrued statutory holiday not taken due to sickness can be taken at a later date - even if it is during the next leave year.
The House of Lords will now have to deal with these points as applied to the case in the light of the ECJ decision.
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Implications for employers:
Employers must provide all workers with at least four weeks annual leave in accordance with Regulation 13 of the Working Time Regulations 1998 in the usual way.
The UK's current Working Time Regulations (WTR) state that leave must be taken in the year in which it is due, this now seems inconsistent with the ECJ's judgement in Stringer and so new legislation may be needed.
Employers may incur increased costs in relation to workers who return (or leave) following long-term sick leave.
Employers should check private health insurance schemes and may be better off not providing these and dismissing the long-term sick earlier rather than later.
At the very least employers should focus on managing sickness absence to ensure the employees return to work as soon as possible.
Workers who are incapable of work through illness have the right to annual leave, but this leave cannot be taken during the period of sick leave.
If the employment relationship ends, workers are entitled to a payment in lieu in respect of untaken leave due to sickness (even if the worker is absent for all or part of the leave year in question).
Accrued statutory holiday not taken due to sickness can be taken at a later date (even if it is during the next leave year when the worker returns to work).
Employers should remain wary of denying holiday pay to employees who have been absent for part of the year.
As the EU cases refer to the four weeks holiday under the EU Working Time Directive, employers must decide how to deal with the additional holiday conferred by the UK Working Time Regulations (and/or any contractual holiday). This must be dealt with in sickness, or absence policies.
The ECJ judgment does not entitle workers to accrue the additional holiday during sickness absence, although employers may wish to allow this. If they do not, disability discrimination issues may arise and treating the extra holiday entitlement differently may be difficult for personnel departments to administer. Alternatively employers may limit any holiday which accrues during sick leave to a maximum of four weeks holiday as long as the relevant policy says so.
Employers must review current holiday policies to remove reference to untaken holiday being lost at the end of the leave year, at least as far as those on sick leave are concerned.
The cases do not deal directly with other areas of the law and it is unlikely to further affect other common long term absences such as ordinary and additional maternity leave. Perhaps subsequent cases may address similar issues concerning paid holiday during, for example, a long term sabbatical.
As the law is now going through a process of change employers must be very careful with employees who are on long-term sick leave as they are also likely to be protected by the Disability Discrimination Act 1995.
Subject to what the House of Lords says, workers may be obliged to, or prevented from taking paid annual leave, during sick leave (as long as they do not lose it altogether).
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You will see from that that the ECJ was all about it being lawful for national laws to refuse a worker the right to take holiday while on sick leave, as long as they get to take it when they get back, even if it means they need to carry over some.
I'm not sure it's a simple as saying that will automatically apply to workers on maternity leave tbh.