Dreaming of my holidays…

And now for some employment law – and in particular, the interpretation of the provisions of the Working Time Regulations 1998 which govern workers' annual holiday entitlements. In a recent decision of the European Court of Justice, it was ruled that where a worker is ill during a period which had been allocated as annual leave, that worker will be entitled to receive his or her annual leave at a time other than that which has originally been scheduled, i.e compensatory holidays for the days in which he/she was ill during the original holidays.

The case of Pereda v Madrid Movilidad concerned a worker’s rights under the Working Time Regulations 1998.  The facts of the case are straightforward. The worker’s employer had drawn up a planned staff annual leave schedule for 2007 in conformity with a collective agreement. In terms of that staff leave schedule, the worker had been allocated a period of annual leave from the 16th of July to the 14th August 2007. However, before such period of annual leave was due to begin, the worker was unfortunate enough to sustain an accident at work. Due to that accident, the worker was unable to return to work until the 13th of August 2007. The result was that the worker missed out on the planned period of annual leave from the 16th of July to the 14th August 2007. After his return to work, the worker requested that he be allocated a new period of annual leave for the year 2007 on the basis that he had been sick during the period of annual leave which had originally been allocated to him. The employer refused this request and the worker raised legal proceedings.

The European Court of Justice ruled that Article 7 of the Working Time Directive 2003 had to be interpreted as precluding national provisions or collective agreements which provided that a worker who was on sick leave during a scheduled period of annual leave did not have the right after his recovery to take his annual leave at a time other than that which had been originally scheduled. It should be clarified at this juncture that regulation 13 of the Working Time Regulations 1998 implements Article 7 of the Working Time Directive 2003. The European Court stated that the right to be paid annual leave had to be considered a particularly significant principle of Community social law from which there could be no derogations. The purpose of the entitlement to paid annual leave was to enable the worker to rest and enjoy a period of relaxation and leisure. However, the purpose of sick leave entitlement was to enable the worker to recover from illness. Although the Working Time Directive did not preclude national legislation or practices which enabled a worker on sick leave to take annual paid leave during that sick, where that worker did not wish to take annual leave during a period of sick leave, annual leave had to be granted to him for a different period.

The analysis of the European Court of Justice in the case of Pereda ties in logically with what it decided in the cases of first, Robinson-Steele v RD Retail Services Limited [2006] IRLR 386 and secondly, Stringer v H M Revenue and Customs [2009] IRLR 214. In each of the three cases of Pereda, Robinson Steele and Stringer, the European Court has stressed the importance of employers taking positive steps to ensure that their workers take their annual leave.  This is an important reminder that the essential question in deciding whether or not an employer has breached regulation 13 of the Working Time Regulations 1998 is whether a worker has been deprived of his or her annual leave and the fact that the worker had consented to this at the time is irrelevant. In Pereda, this uncompromising position leads to the rather bizarre situation whereby a worker who becomes ill whilst on holiday will be entitled to further annual leave to offset those days during which he or she was ill. One might wonder if this is tantamount to something akin to a ‘chancer’s charter’? Discuss…

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