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No rest from annual leave developments

In the fast paced world of employment law, entitlement to annual leave is certainly one area where there never seems to be any time off for employment lawyers! But before you get your violins out, employment lawyers are of course entitled to statutory minimum annual leave in common with all workers in the European Union.
As is the case with much of our employment law, the origins of the minimum holiday entitlement can be traced back to Europe. Article 7(1) of the Working Time Directive requires member states to take steps to ensure that workers within each country are entitled to a minimum of four paid weeks’ annual leave.
In a recent European Court of Justice (ECJ) decision (Dominguez v Centre Informatique du Centre Ouest Atlantique and another C-282/10) it has emerged that public sector workers might have more scope to enforce rights to annual leave under the Working Time Directive than we previously thought. This development is of no small significance in the UK where there is an on-going debate as to the sustainability of our own regulations governing entitlement to annual leave.
Why is there a potential difference between public and private sector workers?
Before Directives have any effect in the UK the government has to enact legislation to bring them into force. The Working Time Directive was given the force of law in the UK by the Working Time Regulations 1998 (“WTR”). However, in limited circumstances Directives can have direct effect in the UK and therefore can be relied upon directly without the need for additional UK regulations.
Directives will only have direct effect when they are unconditional, unambiguous and member states have limited power to adapt the law to suit their own needs. Even then, Directives will only have direct effect against “an emanation of the state” i.e. a public sector organisation. This means that a worker could raise a claim against a public sector employer relying on a Directive directly, even if the UK law says something different. In the context of annual leave entitlement, the ECJ in Dominguez said that the provisions of the Working Time Directive were capable of having direct effect in all member states of the European Union. That is why those in the public sector might now be at a slight advantage compared to private sector workers where the Working Time Directive is considered to be more advantageous than the WTR.
The English Court of Appeal had previously held that the Working Time Directive was not precise enough to allow it to have direct effect in UK law. That meant that workers could only rely on the WTR to enforce their rights. It seems the ECJ thinks otherwise. 
Are there significant differences between the Working Time Directive and the WTR?
In short, yes. In many respects the WTR are more advantageous to workers than the Working Time Directive, not least because they entitle workers in the UK to an additional 1.6 weeks’ annual leave per year. There are however some discrepancies which have emerged through case law whereby arguably the European law is more advantageous. A good example is in relation to the holiday entitlement of workers on sick leave.
The explosion in case law on this subject in recent years has highlighted an inconsistency between the interpretations of European law on the one had and of UK law on the other. UK law states that holidays cannot be carried over from one year to the next, whereas the ECJ has said that in certain circumstances workers must be allowed to carry over their holiday entitlement – in particular, if a period of incapacity has prevented them from taking time off.
So far, courts and tribunals in the UK have laboured to interpret the UK law so that is consistent with European law with the result that employers are being encouraged to allow workers to carry forward annual leave they have accrued while off sick. Whether or not the UK law really requires that has been the subject of much debate and therefore remains open to challenge. Indeed, the on-going uncertainty has prompted government proposals to amend the WTR.
In light of the decision of the ECJ in Dominguez the meaning of the WTR may be neither here nor there to those in the public sector. If the courts and tribunals in the UK decide to change course and interpret the law differently, public sector workers could arguably enforce their rights under the Working Time Directive irrespective of what the UK law says.
For further advice or assistance relating to employment law please contact Robert Holland.

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