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December 8, 2015

Tribunal Tale – What Doesn’t Come Down Doesn’t Go Up Either

The Court of Justice of the European Union (ECJ) had previously decided that, where a worker’s hours reduce in the course of a holiday year, there should be no recalculation of leave accumulated in the first part of the year.  It has now been asked to confirm that the same is true where a worker’s hours increase in the course of the year.

In Greenfield v The Care Bureau Limited, Ms Greenfield worked variable hours.  Her entitlement to holiday was based on her hours in the 12 weeks preceding the leave she wanted to take.  The holiday year ran from 15 June.  When Ms Greenfield took 7 days holiday in July 2012, she had been working just one day a week in the previous 12 weeks so her holiday equated to 7 weeks’ holiday which was in excess of her statutory entitlement to 5.6 weeks.

In August of that year, Ms Greenfield increased her hours significantly and worked a pattern of 12 days on, 2 days off per fortnight.  When she requested holiday in November, her request was refused on the basis that her earlier holiday had exhausted her annual entitlement for that year.

The ECJ held that annual leave must be calculated by reference to the hours actually worked by a worker and that periods where different working patterns apply should be looked at separately.  Where there is a change in working pattern, there is no requirement to adjust the amount of leave to which the worker was entitled for the period to the date of the change.  However, leave for the remainder of the holiday year should be calculated on the basis of the new working pattern and any excess which arose under the previous pattern may be deducted from the entitlement for the remainder of the year.

In this case, there was no need to recalculate Mrs Greenfield’s entitlement to holiday to July 2012, this was correctly assessed at 5.6 weeks annual leave and she had exceeded this.  Her holiday entitlement for the remainder of the year needed to be recalculated on the basis of her new working pattern for that period and the employer was entitled to deduct the earlier excess from the recalculated entitlement.

If you have any questions on any of the issues raised in the above article, please contact Frances Smith

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