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 ” 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 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 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 IT. Limits ie the maximum working week only enforceable by the HSE as an offence. Distinction now questionable.