The Stringer and Pereda CJEU judgments concern the interaction of sick leave and annual leave, Gomez was concerned with maternity leave and Land Tirol parental leave. The combined effect of the CJEU judgments is that if a worker is unable to take their annual leave within the leave year due to sickness absence, maternity or parental leave then they should be allowed to carryover untaken leave. The current WTRs are silent on some of the principles in the judgments and explicitly forbid the carry over of annual leave which is clearly inconsistent with these judgments. Furthermore, the provisions in the WTRs on the entitlement to a payment in lieu of untaken leave upon termination do not take account of untaken leave which should have been carried over from a previous leave year. The Government must therefore amend the WTRs to ensure they comply with these judgments. The Stringer/Pereda judgements established the following principles in respect of the annual leave entitlement under the Working Time Directive: · Annual leave accrues during sickness absence (Stringer); · Annual leave and sickness absence can be taken at the same time if the employee wishes (Stringer); · A worker whose employment terminates in a year during which they have been on sickness absence, is entitled to the same termination payment as any other worker (Stringer); · A worker sick during scheduled annual leave can, if they wish, reschedule it within the leave year (Pereda); and · A worker, who has missed annual leave due to sickness absence and has not had an opportunity to take it again within the leave year, must be able to carry it forward into the next leave year (Pereda). The judgments on maternity (Gomez) and parental leave (Land Tirol) also mean that a worker cannot lose their right to annual leave because of these other types of leave. Member States are obliged to implement EU Directives. Where domestic law is incompatible with the meaning of a provision in a Directive, as interpreted by the CJEU, then the UK is obliged to amend that law to achieve compatibility. Not taking such action gives rise to the risk of infraction proceedings from the European Commission, or other legal challenge. These changes are also consistent with the Government's policy to encourage shared parenting by ensuring that a worker can take both their annual leave and family friendly leave. In putting forward proposals to amend the WTR to be consistent with the judgments, the Government wants to look carefully at how it can provide appropriate protections for workers without imposing unnecessary costs on business. The primary policy objective is to render UK legislation consistent with CJEU case law, providing clarity and certainty for employers whilst minimising and where possible mitigating increased costs. The proposed changes are also consistent with the Government's policy to encourage shared parenting by ensuring that a worker can take both their annual leave and family friendly leave. Modern Workplaces consultation Impact Assessment
CIPP POLICY SURVEY: MODERN WORKPLACES CONSULTATION
22 June 2011
CIPP Policy News Journal
09/10/2012, Page 225 of 234
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