Annual leave and holiday pay
In Pereda v Madrid Movilidad SA [2009] IRLR 959 ECJ, the ECJ held that art.7(1) of the Working Time Directive must be interpreted as precluding national provisions or collective agreements that deny a worker who is on sick leave during a period of scheduled annual leave the right to take the annual leave at a later time, even if this is outside the holiday year in which the annual leave was accrued.
In HM Revenue and Customs v Stringer and others sub nom Commissioners of Inland Revenue v Ainsworth and others [2009] IRLR 677 HL, the House of Lords held that a claim for unpaid holiday due under the Working Time Regulations 1998 can be brought as an unlawful deductions from wages claim under ss.13 and 23 of the Employment Rights Act 1996.
In Schultz-Hoff v Deutsche Rentenversicherung Bund; Stringer and others v Her Majesty's Revenue and Customs Cases C-350/06 and C-520/06 ECJ, the ECJ has held that the Working Time Directive allows member states to prevent workers from taking annual leave during periods of sickness, provided that they are permitted to take it at some other time. If sickness prevents a worker from taking his or her annual leave entitlement, it must be carried over into the next leave year. Workers whose employment is terminated cannot have their payment in lieu of annual leave reduced on account of a period of sickness prior to the dismissal.
In Lyddon v Englefield Brickwork Ltd EAT/0301/07, the EAT held that, where an individual knew that his normal pay would include an element of holiday pay, subsequent identification in his payslip of the actual amount so allocated was sufficient to make it part of his contract, thus allowing the employer to offset those payments against the pay that was due to him when he actually took holiday.
In McMenemy v Capita Business Services Ltd [2007] IRLR 400 CS the Court of Session held that an employer that did not award time off in lieu of bank holidays to a part-time employee who did not work on Mondays was not in breach of the part-time worker Regulations.
This week's case of the week, provided by Charles Russell, covers employer-designated days of leave.
In May Gurney Ltd v Adshead and others EAT/0150/06 the Employment Appeal Tribunal holds that the remuneration of employees entitled to a perfomance bonus "does vary with the amount of work done". Accordingly the amount of a week's pay for the purpose of calculating holiday pay will be determined by taking the employees' average pay over the 12 weeks preceding their holiday.
In British Airways plc v Noble and another [2006] IRLR 533 CA, the Court of Appeal has held that a reduction of 4/52 in employees' shift pay, spread evenly throughout the year, is not a breach of the Working Time Regulations 1998.
In Robinson-Steele v RD Retail Services Ltd and other cases Joined Cases C-131/04 & C-257/04 ECJ, the European Court of Justice held that it is unlawful to "roll up" holiday pay so that, in effect, workers' minimum period of paid annual leave is replaced by an allowance, paid in instalments throughout the year.
In Commissioners of Inland Revenue v Ainsworth and others, the Court of Appeal holds that workers absent through long-term sick leave who have exhausted their entitlement to sick pay are not entitled to four weeks' holiday pay when they have done no work during the leave year.
Employment law cases: HR and legal information and guidance relating to annual leave and holiday pay.