Holiday issues

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http://www.casecheck.co.uk/DesktopMo...6/Default.aspx


Re: Mr J Lyons v Mitie Security Ltd UKEAT/0081/09/CEA By Biggart Baillie on 21/01/2010 20:02 Employee's right to annual leave is challengeable

Some would say that most recent “annual leave” cases seem to favour employees. Though the employee in Lyons v Mitie Security Limited won his appeal, the Employment Appeal Tribunal (EAT) helpfully concluded that an employee’s statutory right to annual leave is not unchallengeable.

Under the terms of his contract of employment, Mr Lyons had to give four weeks notice to take a holiday. Any holiday request received with shorter notice would be considered in line with the employer’s staffing requirements. Mr Lyons’ contract also stated that holiday entitlement not used in the relevant holiday year would be lost and not carried over.

Mr Lyons had 9 days holiday to take near the end of his holiday year. He did not give his employer four weeks notice and lost his holiday entitlement in that holiday year. As a result, Mr Lyons resigned and claimed constructive dismissal.

The EAT concluded that an employee’s entitlement to minimum paid holiday leave can be subject to fairly operated statutory or contractual notice requirements of an employer. It also confirmed that employers must not operate conditions of entitlement to holidays in an unreasonable, arbitrary or capricious way so as to deny any holiday entitlement requested.

What this means is that employees who have a number of holidays left at the end of the holiday year may lose them if they do not comply with fair and reasonable notice provisions or conditions of entitlement set by their employers.

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Re: Holiday issues

http://www.boyesturner.com/news-article.html?id=976

Holiday and sickness absence - the plot thickens…


An Employment Tribunal rules “yes” to holiday being carried over where an employee is prevented from taking holiday due to illness.
Background

Under the Working Time Regulations 1998 (WTR) which derives from European legislation, holiday entitlement can only be taken during the holiday year, unless the employer has different rules or there is a workplace agreement. However, a case in the European Court of Justice from 2009, Pereda –v- Madrid Movilidad SA, held that if an employee is prevented from taking holiday because of short-term sickness absence, they should be allowed to re-schedule the holiday – including being allowed to carry over the holiday lost through illness to a new holiday year. Now in a UK case, Shah –v- First West Yorkshire Limited, the Employment Tribunal has had to consider this very issue.
Shah -v- First West Yorkshire Limited

Mr Shah had booked and been granted 4 weeks’ holiday by his employer. However, before taking his holiday he broke his ankle and had to take 3 months sickness absence. He asked his employers if he could reschedule his holiday for another time but his employer refused as this would have meant the holiday fell into the following holiday year. Mr Shah brought a claim under the Working Time Regulations 1998 that he should be allowed to take his accrued holiday entitlement.
Employment Tribunal Decision

At present, the Working Time Regulations 1998 have not been amended in line with the decision in Pereda. However, the Employment Tribunal ruled that Mr Shah “is entitled to take the holidays which he was prevented by ill health from taking in March of 2009 at some subsequent time in the following leave year." The Employment Tribunal decided to interpret UK law in line with previous ECJ decisions (including Stringer –v- HMRC), to reach this conclusion.
Where does this decision leave employers?

The decision in Shah is a decision of the Employment Tribunal; it is not therefore binding on other tribunals. However, the decision does follow other decisions of the ECJ and it is therefore likely that the decision in Shah will be persuasive.
Unless the employer has specifically allowed the employee to carry over holiday either in the contract or a workplace agreement, the current drafting of the WTR do not automatically allow an employee the right to carry over holiday entitlement. The difficulty with the decision in Shah is that employees could take sick leave and then ask for time off which could be unfair to those who have not taken sick leave. However, the other argument is that holiday entitlement is about a worker taking a rest from work and one could argue that an employee on sick leave is not taking a rest from work.
The conflict between UK and EU law on this issue is likely to be addressed with changes to the WTR expected. In the meantime there is no need to amend holiday policies to reflect the decision in Shah. However, if an employer wants to amend its policies now, a distinction should be drawn between WTR holiday entitlement (currently 28 days including Bank Holidays) and contractual holiday. The decisions of Stringer, Pereda and now Shah only concern WTR holiday entitlement. Therefore, if the employee wants to allow for carry over of holiday if an employee is prevented from taking because of illness it could do so in respect of WTR holiday only.
Bear in mind that allowing workers to have sick leave and then holiday could lead to massive abuse. The matter of policing this possible decision has yet to be addressed. It could be that it only applies to sickness absence which has been certificated by a doctor, or will there be some higher threshold test? There are still a lot of questions yet unanswered.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.