Labour Research (March 2011)

Law Queries

Holidays

Q. A member was booked to take a holiday, but rushing to get all their work finished before the break they wore themselves out and fell ill. Unfortunately, they were not able to go away on holiday. They sent in a sick note but the employer has declined to credit them with the untaken days’ holiday. Where do they stand?

A. In 2009, the European Court of Justice, in the joined cases of Schultz-Hoff v Deutsche Rentenversicherung Bund (C-350/06); Stringer and Others v HMRC (C-520/06) ruled on the meaning of Article 7 of working time directive.

It noted that the minimum period of annual leave (four weeks a year for someone working five days a week) cannot be substituted — other than where the employment is at an end. It found that the meaning of Article 7 is that where an individual is off sick they must be entitled to defer taking their holiday (the treatment of days of holiday above the minimum required under the directive is different).

Therefore, if your member is not credited with the days lost or does not receive pay in lieu if they leave their employment before taking those re-credited days, they will be able to bring a claim in the tribunal. The claim would be for a breach of the working time directive and/or a claim for unlawful deduction from wages.


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