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

phylis.stein

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?

wmpdd3

We also have this, if you on long term sick leave (6 weeks plus) you cannot take you holiday hours.

Of course if you not working you cant accrue holiday leave. Its only when you on maternity leave that you can accrue holiday hours.

I think this may refer to a situation where if you are on holiday and end up getting sick, you can get paid for your holiday instead of trying to take it again.

phylis.stein

wmpdd3 wrote: »

We also have this, if you on long term sick leave (6 weeks plus) you cannot take you holiday hours.

You have that in so far as thats what your employment contract sets out - and your employment contract was assembled by your employer. That doesn't mean to say that it overrides state or European law. ;-)

wmpdd3 wrote: »

I think this may refer to a situation where if you are on holiday and end up getting sick, you can get paid for your holiday instead of trying to take it again.

No - It refers specifically to the accrual of holiday hours for those on long-term sick leave. So that we are on the same page, check this out here. It validates what I am saying. However, I am still looking for solid experiences in this regard. Therefore, I would be keen to hear from anyone who has been down this road - and what degree of success they have had.

Eoin

Check out the last paragraph from here:

Long-term sick leave and annual leave
In 2009 the European Court of Justice (ECJ) ruled in case C-350/06 that a worker who is on long-term sick leave during the leave year does not lose the right to annual leave. The ECJ ruling states that employees who have not worked during the leave year because they are on sick leave, are entitled to their statutory annual leave for that year. According to this ruling workers are entitled to accumulate annual leave while on sick leave.

Many employers insist that you take your annual leave by a particular date, for example, the end of the calendar year. This ECJ ruling also applies to a worker who was on sick leave immediately before leaving the employment. This means that the worker would be entitled either to carry over, or receive payment for, annual leave which was not taken because the worker was on sick leave.

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.

phylis.stein

Eoin wrote: »

Check out the last paragraph:
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.

Thanks for that. I had come across something to this effect. However, I was eager to see if anyone had taken this a step further. Remember, the ECJ ruling trumps member state law on the matter - albeit that it leaves it up to them to amend their respective legislation pertaining to employee's entitlement to annual leave. That was over 2 years ago! National legislation has not been touched!

So.....

On the one hand, the story is that employees who fall into this category should be entitled to their annual leave (or receive payment in lieu)....

But...they can't avail of this until national law is changed.


Surely this is a totally inequitable situation! Even more unfair is the fact that public sector employees can benefit from it whilst private sector employees cannot. Can this be challenged by an individual - and if so, how??

phylis.stein

Doing a bit more reading and found this - which says the following;

Nevertheless, private-sector employers should note that where an employee submits a claim for annual leave during a period of sick leave in a third party hearing, the claim will most likely cite both the Labour Court and ECJ rulings. In such a case, it will be difficult to see how such a claim would not be successful.

This implies that the employee would be successful. It refers to a third party hearing. Where exactly would the complainant register this grievance?? i.e. what 'third party hearing' are they referring to?

Mrs OBumble

Quick reality check:

Laws are all well and good, but (unless you're an unemployed lawyer!) is the amount of pay you're talking about really worth the potential legal fees?

phylis.stein

JustMary wrote: »

Quick reality check:

reality check? You wouldn't even begin to understand the reality (nor am I going to start to explain it here!!)

JustMary wrote: »

is the amount of pay you're talking about really worth the potential legal fees?

YES! - now can we please get this back on topic :rolleyes:

the_syco

phylis.stein wrote: »

check this out here. It validates what I am saying.

Are you based in Belfast, and/or the UK? I ask as the ruling seems to talk about UK courts.

Also, are you private or public sector? I ask as in the part you quote in post 5

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

Seems to say it only applies for public sector.

phylis.stein wrote: »

It refers to a third party hearing.

Most like NERA - http://www.employmentrights.ie/en/informationforemployees/ or the other one. I forget it's name

Also, the link you gave (http://www.graphitehrm.com/survey/ecj.htm) says

However, for private-sector employees, this will only become law once the original 1997 Act is amended. Therefore, a private-sector employer may not be required to implement this decision until the Irish Act is changed.

so if the law hasn't been changed, I'd be unsure what your chances of it are.

You'd be best to talk to an employment lawyer about this. From your comment

phylis.stein wrote: »

YES! - now can we please get this back on topic :rolleyes:

am I right to assume that you have contacted one, and that they have said, even though there is no law stating that a private sector company must do so, that the process will not drag out for a number of months/years costing you a lot of money along the way?

phylis.stein

the_syco wrote: »

Are you based in Belfast, and/or the UK? I ask as the ruling seems to talk about UK courts.

Based in IE - and the ruling affects ALL member states. Whilst I understand that the document linked to above has been produced by a UK based firm, you will appreciate (whilst there are differences), in many respects legal systems are very similar - and it's commonplace for UK case law to be referred to on an ongoing basis within the irish legal system.
Having said that, there are other interpretations (one other I've linked to) which have been produced by IE based firms.

the_syco wrote: »

Also, are you private or public sector? I ask as in the part you quote in post 5 Seems to say it only applies for public sector.

Private sector - and I'm aware that it's more clearcut for public sector employees - as outlined.

the_syco wrote: »

Also, the link you gave (http://www.graphitehrm.com/survey/ecj.htm) says

so if the law hasn't been changed, I'd be unsure what your chances of it are.

That link that I quoted from seems to suggest that "it will be difficult to see how such a claim would not be successful." Not content with that alone, I thought I would post here to see if there is anyone out there with more experience of this.

the_syco wrote: »

am I right to assume that you have contacted one, and that they have said, even though there is no law stating that a private sector company must do so, that the process will not drag out for a number of months/years costing you a lot of money along the way?

Your right in the first part of that statement - but not necessarily in the second part. Lets just say the indication would be that it would be achievable - but there is a path that would produce a result in the long term - and one that may be more straightforward. Sorry, don't mean to be talking in riddles - but I don't want to discuss that aspect of things in any greater detail. What I would welcome is any insight other boardsters may have due to their own personal experiences with this specific issue.

At the end of the day - regardless of the subject - knowledge is power ;-)

Shelflife

If we take the senario of a year off sick and an employee on €500 pw.

through no fault of their own you expect the employer to pay €2000 plus tax of 8% €160 total €2160 to someone whos not in work?

Add to that the cost of paying the first 3 weeks sick pay (in my industry its law under the jlc) of €1550 and you would have a total cost to the employer of €3710 or €70 pw for someone who hasnt worked at all for you.

Simply put its unsustainable to expect a business esp the smaller ones to pay out this type of money for no return.

what would happen is that employers would move to terminate the contract of the long term absentees quicker then they do at the moment.

so while you may have short term gain, long term you would lose out.

phylis.stein

@Shelflife: I understand where your coming from - but what your posting is off topic. Even though I understand the point your making - that doesn't assist in the original query. You may be reluctant to contribute to that based on the argument you presented. However, be aware that there is a long history that has brought this situation about in the first instance - and if you understood that, you would not even bother pointing out the above to me.

Shelflife wrote:

through no fault of their own you expect the employer to

Your working on assumption here Shelflife - please don't do that ;-)
I can't (and simply won't - for a myriad of reasons) get into the in's and out's of that.
Whilst I don't want to get into the rights or wrongs of it - I will just simply say this. The European Court of Justice has already ruled on it -and one way or another, our (beloved) legislators will have to get their finger out and enact same - FACT.


Therefore, I would be very grateful if we could specifically stick to the original topic - and the question I posed. I guess ideally, I am looking for opinions/input from someone out there who has already approached this issue from the perspective I'm now faced with.

wmpdd3

According to the union, they are just enforcing the working time directive. Until the law is changed they would not consider making a claim to an employer.

Sorry I cant tell you which union this was but it is one of the main ones covering retail.

Try:
http://www.lrc.ie/

or maybe the legal discussion section here.

Also try looking through the reccomendations here:

http://www.labourcourt.ie/labour/labour.nsf/LookupPageLink/Recommendations

Its more up to date.

phylis.stein

wmpdd3 wrote: »

According to the union, they are just enforcing the working time directive. Until the law is changed they would not consider making a claim to an employer.

They won't because they feel such a complaint simply wouldn't be upheld (in their view) or they simply don't want to (for whatever other reason)?

wmpdd3 wrote: »

Try:
http://www.lrc.ie/
Also try looking through the reccomendations here:
http://www.labourcourt.ie/labour/labour.nsf/LookupPageLink/Recommendations
Its more up to date.

Thanks for that. It looks like that ECJ ruling has only ever been referenced the once - and the case brought by the complainant was upheld by the labour court. Only uncertainty is that this related to a public sector employee/employer. For reasons I simply can't comprehend, public sector and private sector are not being treated the same in this regard. Therefore, unsure what the outcome would be if someone from a private sector background lodged a complaint...

wmpdd3 wrote: »

....or maybe the legal discussion section here.

Good point. Might ask the mods to move....

Mrs OBumble

phylis.stein wrote: »

They won't because they feel such a complaint simply wouldn't be upheld (in their view) or they simply don't want to (for whatever other reason)?

Good point. Might ask the mods to move....

I don't know the union involved, butcan think of a few reasons why a union wouldn't want to take a case like this:

• They have a limited budget for lawyers, and want to spend it in a way that makes they biggest difference for most members
• They don't believe that their members in general would support such a case being taken (see the argument in a post above about the impact on a business)
• They can see the danger in enforcing such a law, viz that employers will be more likely to terminate employment in long-term sickness cases.

Use the report-post button if you want the thread moved, I don't think we can help you much here.

phylis.stein

JustMary wrote: »

can think of a few reasons why a union wouldn't want to take a case like this:

[*]They have a limited budget for lawyers, and want to spend it in a way that makes they biggest difference for most members

That's a misnomer. From what I've been able to gather, a complaint of this nature would go the way of the rights commissioner and possibly the labour court. There is no major outlay required here.

JustMary wrote: »

[*]They don't believe that their members in general would support such a case being taken (see the argument in a post above about the impact on a business)

One could only imagine that they would have the intelligence to weigh up the facts of a specific situation. As I keep trying to point out, your not privy to the background to this (nor will that be discussed here). Given that that's the case, it would be beneficial if people did not base their responses on assumptions.

JustMary wrote: »

[*]They can see the danger in enforcing such a law, viz that employers will be more likely to terminate employment in long-term sickness cases.

I know where your coming from - when considering this in general terms - but understand that the chain of specific events in this instance would not leave your sympathies or support with the employer.

JustMary wrote: »

Use the report-post button if you want the thread moved, I don't think we can help you much here.

I will leave it for a few more days - as I think the actual query has been sidetracked by folks trying to show me the error of my ways in pursuing this rather than contributing towards the original query.

gerrycollins

phylis.stein wrote: »

"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, 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, .”

if you break down the terminology i dont see the reference to sick pay here. the more and more i read it the more i see it reference to annual pay before termination of the relationship.

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,

picking up on this segment I see this as a reference to an employees right to holiday pay entitlements accrued before their contract is terminated by force or consent due to the employee not been able to take holidays for what ever reason before termination.

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,

this segment i think backs up the first in regard to the employees right to excercise their right to paid leave.

the wording that keeps highlightening in my mind is the word termination.

in my industry there is a very strong union influence and I have never heard of anyone on sick leave getting holiday pay other than that alread accrued.

phylis.stein

@gerrycollins: Thanks for your post - and your opinion re. the interpretation of the ruling. However, I don't think that it is as clearcut as this i.e. only happens upon termination.

Check out this interpretation of the ruling. Their 'take' on it is that workers who resume work would be allowed to make use of accrued holidays. Employees who have not had the opportunity to take leave during a year are not to be disadvantaged by this.

The ruling is to be binding on all employers - but it's fudged as regards when it becomes fully effective in the case of private sector workers.

The other point is that I have not come across any indication that the employee has a right to cash in lieu of annual leave - while he/she is still employed (but on long term sick leave) by the company....

gerrycollins

phylis.stein wrote: »

@gerrycollins: Thanks for your post - and your opinion re. the interpretation of the ruling. However, I don't think that it is as clearcut as this i.e. only happens upon termination.

Check out this interpretation of the ruling. Their 'take' on it is that workers who resume work would be allowed to make use of accrued holidays. Employees who have not had the opportunity to take leave during a year are not to be disadvantaged by this.

The ruling is to be binding on all employers - but it's fudged as regards when it becomes fully effective in the case of private sector workers.

The other point is that I have not come across any indication that the employee has a right to cash in lieu of annual leave - while he/she is still employed (but on long term sick leave) by the company....

i should have added that unless i see the whole ruling i can only comment on the segment you quote.

however as typical europe has left it to member states to make the necessary adjustments.

again with the proposed changes in sick pay payments i can see a lot of employers changing a whole measure of items in their contract to compensate plus the argument from some, especially small employers, is that they just cant afford it.

also would such a ruling have any impact on any social welfare benefits you may recieve while out sick.

you will find a lot of employers only allowing long term sick lasting no more than 2 months before they take effective action to dismiss a person and thats not fair but a side effect to this.

plus this is all for public sector and thats another book on its own.

Irish_Elect_Eng

I can see the argument that you are making and how it has been informed by the analysis that you reference above. And while I believe that this interpretation is incorrect, I do wish you luck in your claim.

However, I do think that it is against the spirit of the original legislation.

Can you explain how it is fair to be entitled to payment for leave not taken from work that was not performed? By its very definition, the purpose of leave is to allow a break for a worker from the contractual need to actually go to work.

No comment on your motivations personally, but to seek payment for leave from a work-place and work load that was not done does seem to me to be greedy.

I agree with the poster above, should this become law even benign employers will move to terminate the contracts employees with long term illnesses more quickly as policy.

phylis.stein

Irish_Elect_Eng wrote:

I do think that it is against the spirit of the original legislation..... By its very definition, the purpose of leave is to allow a break for a worker from the contractual need to actually go to work......to seek payment for leave from a work-place and work load that was not done does seem to me to be greedy.

With respect, you don't know the specifics of the situation - and I'm not going to even start to explain them to you! I'm being sucked in to justifying my position - when I know far too much - to even question the justification behind this!.....and nor do I have the will to go into specifics ....nor would it be wise to do so.

Irish_Elect_Eng wrote:

Can you explain how it is fair to be entitled to payment for leave not taken from work that was not performed? By its very definition, the purpose of leave is to allow a break for a worker from the contractual need to actually go to work........

Yes - I can! When you have an employer who has totally and utterly abused their power & position - in their treatment of an employee following many years of unblemished service - said employee should be in a position to be working, contributing and in turn taking the annual leave that they would otherwise have been entitled to.

Irish_Elect_Eng wrote:

I agree with the poster above, should this become law even benign employers will move to terminate the contracts employees with long term illnesses more quickly as policy.

I totally agree that it is open to abuse. However, there ARE specific circumstances whereby it's the employee that is the victim as a direct consequence of ongoing, sustained and premeditated unethical behaviour of an employer. Again, if I was reading this without knowing the whole picture, then I would be inclined (without giving it full thought - of all conceivable circumstances) to take exactly the same stance as you and others have. However, be careful what you wish for - I hope that none of you find yourself in this postion - but the potential is there for any one of you to be in it...it would be naive to think otherwise.

This is always the problem with legislation - it's hard to legislate to protect a group who may find themselves in a vulnerable position without also giving a window of opportunity for others to abuse the system. I'm not sure how that can be addressed - but to be honest, that doesn't interest me - and that wasn't the purpose of this thread. My query - and we have deviated totally from the specifics of the original question - as originally posted is the only thing that is of interest here. If anyone has anything to contribute towards that, your post on the topic would be welcome. However, it seems from what I can muster together so far is that it's likely that the employee IS and will be entitled to same upon termination rather than during the time of absence. That said, there is no specific private sector case to provide precedent just yet...