For the modern solicitor it has become essential to develop the ability not only to be all things to all people, but also to be in many different places at the same time. When on the beach, we must send emails to the office. While driving, we are actually calling a client (hands-free).

Although some 20th-century law firm principals did believe themselves also to be minor deities, there was, in those halcyon days, a sense of singularity, of focus – with multi-tasking requiring only that numerous articled clerks be sent on errands to distract them from the fact one was taking one’s secretary to luncheon. If our forebears could have foreseen that 21st-century practice would require taking a BlackBerry into the lavatory, they would probably have enjoyed their time even more.

But help is at hand for the modern lawyer, as the European Court of Justice has now decided that it is much easier to be several things at the same time than we have thought for several years (indeed, since the case of Ainsworth and Others [2005] IRLR 465 (CA)).

Back in 1991, Bloomsbury County Court had the privilege of hearing the case of Morley v Heritage (a case I was involved in at some minor level, and lost) in which I clearly recall His Honour Judge Martin having some difficulty in understanding how Mr Morley, a civilised chap, could have the temerity to believe himself entitled to accrued holiday pay on the termination of his employment. In short, His Honour felt that the man was either working or on holiday, but either way would have been paid for the days in question. He could only have been one thing at once and paid one day for each day of employment. Judge Martin concluded that, in the absence of an express term to the contrary, the law needed to imply no term to allow ‘extra pay’. How we smile now, post-Working Time Regulations (1999), but Judge Martin’s was a view shared the following year by the Court of Appeal (see Morley v Heritage Plc (1993) IRLR 400). Indeed, as an appellant, you know things are starting badly when the judge’s opening comment is to tell your opponent’s counsel: ‘There is no need to trouble you, Miss Carr’… Well, not until the costs application.

How far we have come, with the view of the ECJ in the case of Stringer and others v HM Revenue and Customs C-520/06 and the conjoined case of Schultz-Hoff v Deutsche Rentenversicherung Bund (C-350/06). In these cases, the ECJ was asked for a ruling on the resurged question of an employee’s rights to accrue and use annual leave during a period of long-term sickness absence. Its view was that a worker on sick leave will still accrue leave – despite not actually working in the given period – and, more interestingly, that it is possible that they should be entitled to take such leave during a period of sickness. This latter point, which diverged form the advocate general’s opinion, is one that has been left over for member states to decide for themselves.

The decision will compel the House of Lords to dig out its copy of the Working Time Regulations as the ECJ also decided that, if a sick worker hasn’t been able to use up their holiday entitlement, they must be allowed to carry it over (something the regulations probably do not allow). As the coup de grâce, the ECJ finally suggested that the Court of Appeal was wrong to say an employee who has been away sick for the year in question should not be paid in lieu of accrued holiday on termination.

In short, we must consider whether the door is now open for a decision that employees can decide to be on holiday when they are sick (presumably if contractual sick pay is not available), or perhaps decide that they have ceased to be on holiday when they spend their first three days in Magaluf revisiting their cocktails in the hotel bathroom (presumably if contractual sick pay is available).

The position, to an extent, seems then to have reverted to that prevailing at the time of Kigass Aero Components v Brown [2002] ICR 697, which stood, until Ainsworth, as authority that a worker on sickness leave could still take four weeks holiday in any year as paid leave.

Clearly, much work needs to be done here to deal with the concerns expressed by business groups at a decision that, in the current economic climate, appears to present a large potential cost to employers, and a pressure upon private business at least to be less tolerant (and trigger-happy) with those suffering long-term sickness. From a legal perspective, there are also numerous questions left unanswered by the decision and probably a need for amended legislation to give clarity. Employers will need to know, for example, how to deal with accrued holiday that has not been taken in a sickness year – can they pay them in lieu? Or should the holiday, within the spirit of the Working Time Regulations, actually be taken? They will also need to be clear on the risks of compelling employees who are in receipt of statutory sick pay to take holiday in a given sickness period.

It is perhaps fanciful to suggest this could go further, but from the logical perspective of Lord Justice Rose, have we not already opened the floodgates? While maternity is, of course, not comparable to sickness (either at law or in reality), could this not on the same logic allow (or, more sinisterly, require) a woman on maternity leave to take their accrued holiday during that maternity leave period if they are not in receipt of contractual maternity pay? And what of those who remain employed and paid through their companies, yet are really in receipt of critical illness cover?

But in all of this, as always, there lies hope – hope that we can indeed be more than one thing at once and in multiple places. For myself it provides encouragement that, far from being a humble scribe, I am, in some parallel universe, actually an international jewel thief known affectionately as The Badger who, along with my faithful sidekick, Scorch, has escaped the January cold to winter upon my yacht, the Lady Margaret, with elite friends.

See you in the spring.

Darren Clayton, Doyle Clayton Solicitors, London