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An employee’s entitlement to holiday, and the pay he or she receives while taking holiday, has been a hot topic in the courts over the past few years.

In the case of Plumb v Duncan Print Group Ltd, the Employment Appeal Tribunal (“EAT”) has returned to the topic of an employee’s entitlement to holiday while on sick leave.

In 2009, the European Court of Justice (“ECJ”) in the cases of Stringer and Others v HM Revenue & Customs and Pereda v Madrid Movilidad established the following principles:

  • Workers who are off work on sick leave continue to accrue annual leave
  • Workers can take holiday during sick leave, however if they are unable or do not wish to do so, they can take it at a different time, even if this means carrying it over to the next holiday year

These decisions were all made under the EC Working Time Directive (“Directive”). However, they conflict with regulation 13(9) of the Working Time Regulations 1998 (“WTR”) which implements the Directive in the UK. Specifically, this provides that statutory annual leave must be taken in the same year in which it is accrued and cannot be carried over into the following leave year.

Continue Reading Holiday entitlement during sick leave – Where are we now?

Holiday pay is often a tricky issue for employers and one which seems to be changing constantly. In the light of several new cases discussing holiday pay which have been reported over the summer and in the last couple of weeks, we take the opportunity to round up the legal developments, and set out five things employers should know before deciding how much holiday pay an employee may be entitled to on termination of their employment.Continue Reading Holiday pay – five things you should know when calculating holiday pay

The London 2012 Olympics and Paralympics Games are just around the corner! The Olympic Games take place from 27 July to 12 August 2012 and the Paralympic Games from 29 August to 9 September 2012.

This briefing contains guidance on the issues employers are likely to face as a result of employees who have volunteered at the Games, and those wishing to attend events as spectators or follow the Games at work. Due to the unique circumstances of the event it is important for employers to have clear policies in place well before the Games, and for the policies to be communicated effectively to all staff.Continue Reading London Olympic and Paralympic Games 2012: Employee Considerations

UK: The Employment Appeal Tribunal (EAT) has provided important clarification on the annual leave entitlement under the Working Time Regulations 1998 (WTR) of workers (including employees) who are off work on long-term sick leave.

In the case of Fraser v Southwest London St George’s Mental Health Trust, the EAT has decided that:

  • a worker on long-term sick leave must request annual leave in line with the requirements of the WTR in order to be entitled to be paid for it;
  • a worker is entitled to be paid in lieu of accrued but untaken holiday when employment terminates, but only in respect of leave accrued during the leave year in which employment terminates. Accrued but untaken annual leave from previous leave years does not carry forward for the purposes of the payment in lieu entitlement where no request to take such leave was made by the worker; and
  • there is no duty on the employer to make a worker aware that the WTR rules operate in this way.

The decision provides welcome clarification to employers facing holiday-pay claims from workers on long-term sick leave on how to calculate annual leave. It is now clear that such workers are not entitled to be paid unless they requested annual leave during the relevant leave year. The EAT commented that it may seem artificial for an employee who is not at work to have to give notice in this way, but in the EAT’s view that “merely reflects the artificiality of a period of long term sickness counting as holiday at all”.Continue Reading UK: Workers required to request holiday whilst on sick leave in order to qualify for holiday pay

In Pereda v Madrid Movilidad SA, the European Court of Justice (“ECJ”) has decided that where a worker is sick during a period of pre-planned annual leave, annual leave must be granted to him for a different period and if he is prevented from taking it during the current holiday year, he can carry it forward to the next one. This judgment follows on from the recent and highly publicised conjoined cases of Schultz-Hoff and Stringer, which established that a worker on sick leave accrues annual leave whilst off sick but it is for Member States to decide whether a worker can take their annual leave during a period of sick leave. The upshot of these decisions appears to be that employees can choose to do what suits them best – if on long term sick leave, they can elect to take paid annual leave, but if they are sick whilst on paid annual leave, they can elect to postpone paid annual leave and take it later even if that means having to postpone it to the next holiday year. Pereda represents a very worrying development for employers as it opens the door to abuse because unscrupulous employees will be able to re-classify parts of their holiday as sick leave on their word alone.
Continue Reading Workers entitled to postpone annual leave if they fall sick

The House of Lords, in the case of HM Revenue and Customs v Stringer and others has overturned the decision of the Court of Appeal in that case, ruling that claims for unpaid statutory holiday pay and accrued statutory holiday pay on termination under the Working Time Regulations 1998 (“WTRegs”) can be made as unlawful deduction from wages under the Employment Rights Act 1996 (“ERA”), as well as under the WTRegs. This will mean that workers can take advantage of the more favourable time limits which apply under the ERA, which could potentially allow them to claim unpaid holiday pay on termination of their employment going back several years, provided they bring their holiday pay claim within three months of their employer’s most recent failure to pay them holiday pay. This decision will not be welcomed by employers as it will increase the cost of both continuing to employ workers on long term sick leave, and also on termination of their employment. It also leaves unresolved a number of practical problems arising from the decision of the European Court of Justice (ECJ) earlier this year on this issue (see our blog for details of the ECJ decision). Continue Reading House of Lords paves way for back-dated holiday pay claims

The European Court of Justice has ruled that workers on long term sick leave will not lose their right to holiday pay where they have been unable to take the holiday by virtue of being on sick leave. This decision is very unwelcome to employers as it will increase the cost of both continuing to employ workers on long term sick leave, and also on termination of their employment. Read on to see what we think this means for employers in practice.

Gerhard Schultz-Hoff (C-350/06) v Deutsche Rentenversicherung Bund, and Mrs C. Stringer and Others (C-520/06) v Her Majesty’s Revenue and CustomsContinue Reading European Court rules on holiday pay during sick leave

The UK’s ability to opt out of the 48 hour working week is now in peril following the European Parliament vote this week to have it scrapped. The UK’s opt out of this element of the Working Time Directive (in other words employees in the UK being able to agree to opt out of the limit) was agreed in the 1990s but has been under threat now for a number of years. The vote will come as a great disappointment to UK businesses bearing in mind that earlier this year the UK agreed to the Temporary Agency Directive provided it could keep the Working Time Directive opt out. Keeping the opt out was, however, dependent on being accompanied by a number of conditions which guarantee the protection of health and safety of workers. The European Parliament was not convinced that keeping the opt out does not undermine health and safety.
Continue Reading UK’s 48 hour working time opt-out under threat