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Holiday entitlement and worker’s changing hours

Under the Working Time Directive full-time workers are entitled to a minimum of four weeks’ annual leave. In the UK there is also a domestic right to an additional 1.6 weeks’ annual leave (28 days total) under the Working Time Regulations 1998.

It has already been established by ECJ case law that a reduction in working hours when moving from full-time to part-time work cannot reduce the right to annual leave already accumulated during the period of full-time employment. However, in the case of Greenfield v The Care Bureau the ECJ has recently had to consider how annual leave will be calculated where a worker increases their working hours.

The Facts

Ms Greenfield was employed as a care worker and her contract stated that her working hours and days differed from week to week. In July 2012 Ms Greenfield took seven days’ leave at which point (and in the 12 weeks leading up to this), she had been working one day a week. Therefore, her 7 days’ leave equated to seven weeks’ leave, which exceeded her statutory entitlement.

From August 2012 Ms Greenfield increased her hours and began working a pattern of 12 days on, two days off. When she requested a week’s leave in November 2012, her request was refused on the basis she had exhausted her entitlement to paid annual leave in July earlier that year.

Mrs Greenfield brought a case arguing that EU Law required her accrued annual leave to be recalculated retrospectively based on her increased working hours even where she has taken this.

The Finding

A number of questions were referred to the ECJ which ruled that when a worker increases their hours, any statutory annual leave that has already accrued during part time work does not need to be recalculated retrospectively to take account of the increased working hours. However, going forward, leave entitlement should be recalculated to reflect the new working pattern. Any leave taken in excess of the entitlement that applied under the previous working pattern should be deducted from the revised leave entitlement going forward.

It was reiterated that since the purpose of annual leave is to provide workers with appropriate rest from the work required under their contract, accrual must be calculated with regard to the work pattern specified in that contract.

Employers will therefore need to carefully assess the pro rata entitlement of their workers at different stages in the holiday year to ensure the correct calculation is applied where any change in hours is agreed. Failure to do so could give rise to a claim for breach of the Working Time Regulations 1998 or the Part Time Workers Regulations 2000.

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