The EAT upheld the decision of the tribunal to refuse to allow her claim to proceed. When an employee resigns, that ends the employment contract, and there is no need for an employer to accept that resignation for it to have effect. Further, if the resignation is in writing, it takes effect when it is received, not when it is read. So regardless of anything anyone at Lincoln CC said, Ms Horwood’s employment ended on 29 January, and the 3 month time limit started running then. An argument that it was not reasonably practicable to present the claim earlier, because of the employer’s statement that employment continued until 2 February, also failed because it was so clear that she intended to resign with immediate effect in her letter of 28 January.
CLARIFICATION ON HOLIDAY LEAVE ACCRUED DURING SICKNESS – EUROPEAN COURT RULING
11 May 2012
Another case brings significant development to the ongoing issue of carrying over untaken leave but also how much holiday leave those absent due to illness should receive.
Eversheds law firm reports:
It is by now well-established that those on long term sick leave retain their legal right to minimum holiday entitlement, notwithstanding absence. Issues such as the right to carry-over leave to subsequent holiday years and for how long when it cannot be taken for health reasons, remain the subject of debate. The European Court has resisted adopting a prescriptive approach to such issues, relying on the European Working Time Directive from which the law emanates as a minimum framework of health and safety protection. However, the judgment in the German case of Neidel v Stadt Frankfurt Am Main has set another milestone in our understanding of how the Directive is to be interpreted, clarifying how much holiday leave a sick worker can carry forward and the period within which such carried forward leave must be taken before it is lost. The particular case involved a retired public servant who had been absent on sick leave for a number of years and unable to take holiday due to incapacity. On retirement he claimed pay in lieu of his accrued, untaken holiday which, exceeding the minimum annual four weeks’ provided for by the Directive, amounted to 86 days. Two key issues were before the court: whether his entitlement (if any) should be limited to the four week minimum provided in the Directive but also whether German law could lawfully limit the carry-over of his leave to nine months before it was deemed to lapse. The case has particular resonance for UK too as our law also provides additional minimum annual holiday entitlement of 1.6 weeks above the four week minimum requirement and currently makes no express provision for carrying-over holiday leave. Re-enforcing the thoughts of another European Court case in January of this year, the Court has made clear that the four weeks’ of leave specified in the Directive is a minimum only and Member States are able to provide for increased holiday entitlement. In so doing, Member States are also able to lay down the conditions for the granting of that entitlement. Accordingly, the claim for additional leave was rejected. This will be of good news to the UK Government which, in its proposals for legal reform in the area the outcome of which is still awaited, had sought to restrict entitlement to leave in such circumstances to a minimum of four weeks’ leave. The additional clarification this case brings to the subject of appropriate periods of carry-over of untaken leave is also helpful but may prompt the Government to have second thoughts on one aspect of its proposals. The Court has today rejected a carry-over period of nine months as insufficient to allow a worker staggered rest periods which are able to be planned in advance and available in the longer term. In particular it has found that the carry-over period
CIPP Policy News Journal
12/04/2013, Page 41 of 362
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