Legal Entitlement to holiday pay while on long-term sick leave?

[phyllisstein]

My company have a stated policy of not providing holiday leave (or payment in lieu of holiday leave entitlement) while an employee is on long-term sick leave. However, in 2009 the European Court of Justice clarified it as follows;

"With regard to a worker who has not been able, for reasons beyond his control, to exercise his right to paid annual leave before termination of the employment relationship, the allowance in lieu to which he is entitled must be calculated so that the worker is put in a position comparable to that he would have been in had he exercised that right during his employment relationship.”

This clearly points out that an employee is entitled to such leave (or renumeration in lieu of their statutory leave).

However, my employer is maintaining that they have no such obligation. Does anyone have any experience of this scenario?

 

[Mizen Head]

Yes, you are correct about the ECJ ruling, but see this entry on Citizens Information site:

The Organisation of Working Time Act 1997 states that the employee’s entitlement to annual leave is based on hours actually worked. Until this legislation is amended this ECJ ruling that an employee can accrue annual leave while on sick leave is not enforceable by employees in the private sector. However under the principle of ‘direct effect’ it does apply to the public sector and therefore workers in the public sector can accrue annual leave when they are off work on sick leave.

So, I am assuming you are in the private sector, and therefore your employer is correct.

Its a crazy ruling, in my view. Imagine you are an employer and your employee is on long term sick leave and obviously not in work. Then one day the employee is fit again, but tells you he wont be back in work for 2 weeks as he is going on a paid holiday !!

 

[Leo]

That does not clarify your situation. Is your employment being terminated?

Holiday entitlement is built up through time worked, if you are not working, you are not accruing entitlement to holiday leave. Have you worked a minimum of 1,365 hours this year?

This from the Organisation of Working Time Act, 1997

Depending on time worked, employees’ holiday entitlements

should be calculated by one of the following methods:-

a) 4 working weeks in a leave year in which the employee works at
least 1,365 hours (unless it is a leave year in which he or she changes
employment).

b)​

1/3 of a working week per calendar month that the employee works
at least 117 hours.

c) 8% of the hours an employee works in a leave year (but subject to a
maximum of 4 working weeks).

If more than one of the preceding methods at (a), (b) or (c) above is
applicable, the employee shall be entitled to whichever method provides
the greater entitlement. However the maximum statutory annual leave
entitlement of an employee in a leave year is four of his/her normal​

working weeks.

Based on the above methods of calculation, how much leave are you entitled to, and how much have you taken to date?

Contacat [broken link removed] if you feel you are being hard done by.
Leo

 

[phyllisstein]

@MizenHead: Thanks for your reply.

Until this legislation is amended this ECJ ruling that an employee can accrue annual leave while on sick leave is not enforceable by employees in the private sector. However under the principle of ‘direct effect’ it does apply to the public sector and therefore workers in the public sector can accrue annual leave when they are off work on sick leave.

I see the point your making. However, how long is it 'reasonable' to await legislative change in line with the European ruling - which sets the precedent - and for which member states have an obligation to include in their own legislation. They (our legislators) have not done so (yet). Is there a point at which it's unreasonable that they have not done so??

In addition, is it not unjust that a public sector employee can avail of this - whilst their private sector counterpart (and yes, I am private sector) cannot? Surely this is totally inequitable??

That does not clarify your situation. Is your employment being terminated?

No - or at least, that remains to be seen.

Based on the above methods of calculation, how much leave are you entitled to, and how much have you taken to date?

it's not as simple as that - see my response to 'Mizen Head' above.

 

[Purple]

Its a crazy ruling, in my view. Imagine you are an employer and your employee is on long term sick leave and obviously not in work. Then one day the employee is fit again, but tells you he wont be back in work for 2 weeks as he is going on a paid holiday !!

+1 stupid ruling and stupid rule.

 

[phyllisstein]

+1 stupid ruling and stupid rule.

I can see merit in your argument from an employers perspective - but understand that maybe - just maybe - an employer has brought about a set of circumstances that has left an employee in a position they simply should not be in....in which case, it's not such a stupid ruling at all! I'm not saying any more than that, your point of view is noted (and understood) - but I would be grateful if we could now get back on topic.

The query remains. Has anyone any experience specifically with this? How did you approach it and what was the outcome? If the employers position on this was to be challenged, where could this be heard? Labour Court, Employment Appeals Tribunal, the Rights Commissioner or some other office or body??