Working Time Issues
Annual Leave - Directive
• Art 7 of the Working Time Directive
• “Member states shall take the measures necessary to
ensure that every worker is entitled to paid annual
leave of at least four weeks in accordance with the
conditions for entitlement to, and granting of, such
leave laid down by national legislation and/or
practice.”
• “The minimum period of paid annual leave may not
be replaced by an allowance in lieu, except where the
employment is terminated.”
• No derogation allowed with regard to Article 7
Working Time Regulations + Annual
Leave
• Statutory minimum is now 28 days (5.6 weeks)
• Reg 13(9): Leave to which a worker is entitled under this regulation
may be taken in instalments, but(a) it may only be taken in the leave year in respect of which it is due,
and
(b) it may not be replaced by a payment in lieu except where the
worker's employment is terminated.
• Reg 13A – allows for additional leave (8 days which came into effect
from 1/4/09) to be carried forward to the following leave year where
there is a relevant agreement (13A(7)).
• Regulation 15(1) says that “a worker may take leave to which he is
entitled under reg. 13 ...” subject to any notice requirements imposed
on him by the employer.
Stringer and others v HM
Revenue [2009] IRLR 214
• K - was absent on indefinite sick leave for several
months, receiving sick pay. On 10 October 2003,
during the course of that sick leave, she gave notice
to the employer that she wished to take 20 days' paid
annual leave from 17 November to 11 December
2003. Employer refused.
• Other Claimants - had been absent on long-term sick
leave and were absent on sick leave throughout the
leave year in which he or she was dismissed. None of
them had taken any annual leave during that year.
ECJ’s Decision
• Entitlement to annual leave derives from the existence of
the employment relationship, not the worker's capacity to
perform work.
• Workers who are absent on sick leave still accrue
minimum annual leave under the Working Time Directive,
and on termination of the employment relationship, a
worker who has been on sick leave and unable to take
annual leave is entitled to a payment in lieu.
• Member states may provide that a worker cannot take paid
annual leave during sick leave provided that the worker
can exercise the right during another period.
House of Lords
• Case returned to HL
• Employer accepted it was under a duty to pay
for leave accrued during sickness absence
outstanding on termination of employment
• Only issue: can claim also be for unlawful
deductions (ERO) – more favourable re back
pay – potential to go back several years
• HL held claims for holiday pay can be brought
as unlawful deduction form wages
Pereda v Madrid Movilidad SA
[2009] IRLR 959 ECJ
• P had a period of paid annual leave scheduled for 16 July
to 14 August 2007, but on 3 July 2007 he suffered an
accident at work, and was unable to come to work until
13 August 2007. Consequently, he was on sick leave for
most of the period of his annual leave.
• He asked his employer for a new period of paid annual
leave for 2007, from 15 November to 15 December 2007,
on the ground that he had been on sick leave during the
period of annual leave originally scheduled. The employer
refused.
ECJ Decision
• a worker may choose to take their annual leave during the
time they are off work sick, but where “that worker does
not wish to take annual leave during a period of sick leave,
annual leave must be granted to him for a different
period.”
• Consequence - an employer cannot require a worker to
take their statutory annual leave when they are off work
sick. According to Pereda, they must be allowed to carry
over their holiday, even if that is to a different leave year.
Maternity and Annual Leave
• In Merino Gomez [2004] IRLR 407 the ECJ held that
pregnant workers have a dual entitlement to annual
leave and maternity leave. In this case, it was a
fixed period of annual leave (30 days) which fell
during her maternity leave. Statutory annual leave
should be protected and it should be possible for an
employee to take it during a period other than the
maternity leave period. Therefore, employers should
allow employees who are unable to take their leave
due to maternity leave to take holiday at another
time.
Implications for Maternity leave
•
ECJ approach the right to accrue statutory annual leave derives by virtue of
the status of being a worker – if the contract is preserved. It does not require
that the worker actually works. Therefore statutory leave accrues during
sickness leave. Applies to other statutory leave ie maternity, parental,
dependants leave. Be careful of sabbaticals!
•
Note: Enhancement to cover statutory and contractual annual leave by
virtue of Maternity and Parental Leave Regs : Reg 9 (1) An employee
who takes ordinary maternity leave or additional maternity leave(a) is entitled, during the period of leave, to the benefit of all of the terms and
conditions of employment which would have applied if she had not been absent,
(2) In paragraph (1)(a), “terms and conditions” has the meaning given by
Articles 103(5) and 105(5) of the 1996 Order, and accordingly does not include
terms and conditions about remuneration.
Is it an absolute right?
• Lyons v Mitie Security Ltd [2010] IRLR
288
• What happens where an employee has not
complied with the notice requirements for
taking annual leave? Does the principle of
“use it, or lose it” apply?
• Notice requirements.
• Inalienable right to annual leave?
EAT held
• If notice operated correctly by both employee and
employer, such requirements could lawfully result in the
loss of the right to annual leave at the end of the leave year
in respect of leave not taken.
• notice requirements must operate during the whole of the
leave year and must not be operated by an employer in an
unreasonable, arbitrary or capricious way
• Questionable as a matter of European law given Pereda
(see above).
• Not binding in our jurisdiction
British Airways plc v Williams
[2010] IRLR 541
• Whether pilots are entitled to be paid their average
actual salary when they are on holiday, therefore
including allowances, as the employment tribunal
and EAT ruled, or whether, as the Court of Appeal
held, they are only entitled to their basic pay. The
Supreme Court has now decided to refer the issue
to the European Court of Justice.
• The Supreme Court notes, however, that the ECJ
has interpreted the Working Time Directive as
requiring holiday pay to be “comparable” to a
worker's normal remuneration.
On call
• Blakely v SEHSST [2009] NICA 62
• An estates officer - claimed that the hours he spent
on-call all fell to be treated as “working time”
within regulation 2 of the 1998 Regulations. IT
agreed.
• Article 1 of the Directive
• “Working time shall mean any period during
which the worker is working, at the employer’s
disposal and carrying out his activity or duties in
accordance with national laws and national
practice.”
• B was usually on call one week in every six.
• when Mr Blakley was on call he did not have to be at the
Trust premises nor did he have to be at home
• NICA upholds appeal and rejects IT findings
• His situation was as the ECJ in SIMAP described as “being
contactable” without being obliged to be present and
available at the work-place or a place designated by the
employer.
• only to be treated as working when called on to actually
provide services during the period on call.
Rest Breaks
• Claire Martin v SHSCT NICA
• Claimant a nurse
• Received breaks but as Trust could not be
guaranteed to be uninterrupted argued should be
treated as working time and therefore paid
• IT agreed
• CA rejected IT’s decision - upheld Trust’s appeal
Enforcement
• Fuß v Stadt Halle (No.2) [2011] IRLR 176
• German firefighter obliged to work more than 48 hours per
week. The ECJ rules that workers are entitled to rely
directly on the WTD against a public employer in order to
secure compliance with the right to a 48-hour working
week
• breach of EU law met the criteria for holding that
individuals harmed have a right to “reparation”
• UK Law: Entitlements ie annual holidays and
compensatory rest enforceable @ IT. Limits ie the
maximum working week only enforceable by the HSE as
an offence. Distinction now questionable.