Jessica Corsi of Osborne Clarke’s employment team looks at the startling implications of a very recent ECJ decision
Topic: Holiday entitlement
Who: BECTU v Secretary of State for Trade and Industry
Where: European Court of Justice
When: 26 June 2001
What happened?:
This case was brought by the broadcasting, entertainment, cinematographic and theatre union BECTU against the Secretary of State for Trade and Industry in relation to annual paid leave rules set out in the Working Time Regulations 1998 (the "Regulations"). These were introduced to ensure that the UK government complied with the EU Working Time Directive (the "Directive").
Regulation 13(7) states that a "worker" has the right to up to four weeks' annual paid leave so long as a minimum of thirteen weeks' continuous employment is served with the same employer. The problem for many of BECTU's members is that they tend to be employed under short term contracts. This means that most do not have the opportunity to notch up sufficient continuous service to become entitled to 4 weeks' paid annual leave.
BECTU sought an annulment of Regulation 13(7). The union argued that it was inconsistent with the Directive. The European Court of Justice agreed with BECTU, saying that even if it is less than 13 weeks, all time worked on short-term assignments should count for the purposes of accruing paid holiday entitlement.
Why this matters:
All companies employing staff on a short term basis should take note of this important judgement. The ruling does not have immediate effect for any entity in the private sector, but the UK government will be under pressure to introduce early legislation amending Regulation 13(7).
Individuals engaged on short-term assignments may not actually insist on taking paid holiday during the time of their assignment, but following this decision, unless they are genuinely self employed, they will soon have the right to payment in lieu of any accrued holiday entitlement at the point when the assignment terminates.
