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decisions on the relationship between holiday rights and sickness over the years that have helped to bring us where we are today with these decisions. In Plumb v Duncan Print Group Ltd, Mr Plumb was on sick leave from April 2010 until February 2014 when his employment was terminated. He asked to take his accrued leave in the summer of 2013, but his employer granted him only the 2013–14 entitlement and refused the entitlement for the previous leave years (2010–11, 2011–12 and 2012–13). Mr Plumb took his claim for payment in lieu for three years’ untaken leave to an Employment Tribunal, which rejected his claim on the basis that he had not proved that he was unable to take annual leave because of his medical condition. On appeal, the Employment Appeal Tribunal, however, ruled that the ET was wrong to require proof that his medical condition prevented him from taking annual leave. The EAT noted that the Working Time Directive did not require leave to be carried over indefinitely and ruled that regulation 13(9) of the Regulation “was to be read as permitting a worker to take annual leave within eighteen months of the end of the leave year in which it was accrued”. Accordingly, it allowed Mr Plumb’s claim for pay for untaken leave in 2012–13 and did not allow his claim for the previous leave years. Accrual during parental leave Parental leave (which is not to be confused this with shared parental leave or paternity leave) is an unpaid right accorded to parents of children who are under the age of eighteen that allows the parent to take up to eighteen weeks, unpaid (although individual contractual arrangements may offer pay during parental leave). Employees who have been employed continuously for twelve months by their employer are entitled to
parental leave. Importantly, the parental leave
Therefore, the ECJ held that parental leave was not a period of work for the purposes of the Working Time Directive. The decision is not one which will change the statutory position in the UK; as the Maternity and Parental Leave Regulations 1999 state that the employment contract will continue during parental leave. This case may, however, be relevant in some situations, such as where an employee is to be absent from work on a career break or sabbatical. Untaken annual leave on death of worker In adjoined cases, Stadt Wuppertal v Bauer and Willmeroth v Broßonn, the ECJ had to decide whether the widows of the deceased workers were entitled to financial compensation in lieu of paid annual leave not taken by the workers. The ECJ confirmed that, under European Union (EU) law, a worker’s right to paid annual leave does not lapse on his or her death. The reason for which the employment relationship is terminated is not relevant as regards the entitlement to an allowance in lieu. Therefore, the legal heirs of a deceased worker can claim an allowance in lieu of the paid annual leave not taken by the worker. If national law prevents that happening, heirs can rely directly on EU law against both public and private sector employers. The ECJ stated that the right to paid annual leave is an essential principle of EU social law and is expressly affirmed as a fundamental right in the Charter of Fundamental Rights of the European Union. For any employers who are in doubt, the ECJ decision makes it crystal clear that they must pay accrued holiday pay to the estate of a worker who has died. Summary In October 2018, the Department for Business, Energy and Industrial Strategy confirmed to the CIPP that more detailed technical guidance for calculating holiday pay would shortly be published on GOV. UK. We know that this is currently being drafted. Most of these cases have come out of the ECJ so it will be interesting to see what happens when the UK leaves the EU, whether we have a deal or not as to whether the ECJ will continue to have an effect on the right to holiday pay. n
provisions offer protection to an employee who takes parental leave, or who seeks to take parental leave. As per guidance (see www.gov.uk/parental-leave) an employee’s employment rights (like the right to pay, holidays and returning to a job) are protected during parental leave. However, the European Court of Justice (ECJ) held in Tribunalul Botosani v Dicu that annual leave may not accrue during parental leave, when the contract of employment is suspended. ...worker’s right to paid annual leave does not lapse on his or her death Ms Dicu, a judge in the regional court of Botosani, Romania was entitled to 35 days’ paid annual leave. Having been absent from work on maternity leave from late 2014 to early 2015, she opted to take parental leave from 4 February 2015 until 16 September 2015. She then extended her period of absence to 17 October by taking thirty days of annual leave. The ECJ considered the Working Time Directive and Parental Leave Directive. In some areas, the right to annual leave presupposes that the worker was at work, but for others such as sick leave or maternity leave it doesn’t. The Parental Leave Directive enables member states to define the status of the employment contract during periods of parental leave, and in Romania the contract was suspended. The result of this suspension is that absence on parental leave is not considered as a period of ‘actual work’ for the purpose of determining paid annual leave entitlement.
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| Professional in Payroll, Pensions and Reward |
Issue 50 | May 2019
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