An ill wind?

The advocate general’s opinion in the German reference KHS AG v Schulte C-214/10 addresses what should happen to a worker’s holiday entitlement under the Working Time Directive 2003/88/EC (WTD) when a period of continuous sick leave straddles more than one leave year. This question had previously been considered by the Court of Justice of the European Union (ECJ) in Schultz-Hoff v Deutsche Rentenversicherung Bund [2009] All ER (EC) 906, [2009] IRLR 214. Schultz-Hoff appeared to have left open the possibility that in these circumstances holiday entitlement could accrue indefinitely, assuming that under local law it could not be taken concurrently with sick leave.

In Schultz-Hoff, another German reference, the worker had been off sick from September 2004 until his contract terminated in September 2005. He claimed a payment in lieu of his accrued holiday entitlement for two leave years but was denied his 2004 entitlement by the local courts because the permitted carry-over period was limited to three months. The