Atypical workers and calculating Annual Leave

The EC Framework Agreement on part-time work stipulates that a worker moving from full-time to part-time work must not suffer a reduction in the right to paid annual leave accumulated but not taken while working full-time. The pro rata principle means that a part-time worker should receive the same holiday, proportionately, as a full-time worker. So what happens when a part time worker increases his/ her hours?

In cases where there are no fixed hours, annual leave accrues on a daily basis and is calculated on the basis of the average hours undertake over a 12 week period.

In Greenfield v Care Bureau the ECJ had to consider a situation where Ms Greenfield had exhausted and in fact taken in excess of her leave entitlement when working one day a week but then increased her hours in the same leave year.

The leave year at Care Bureau runs from June. When Ms Greenfield took 7 days paid leave in July 2012 she had worked on average one day a week over the preceding 12 weeks when she had only in fact accrued 0.93 weeks or 7.44 hours.

In August 2012, Ms Greenfield increase her hours to 6 days on 6 days off.  Her request for a weeks’ leave in November was refused because Care Bureau said that she had exhausted her leave entitlement in July.

Ms Greenfield argued that national law, read in conjunction with EU law, requires that leave already accrued and taken should be retrospectively recalculated and adjusted following an increase in working hours; in effect, the new working hours should be used to calculate the leave entitlement that had already accrued, even if that leave had already been taken. Care Bureau argued that EU law does not provide for a new calculation to be made and so Member States are not required to make an adjustment under national law.

The ECJ found that there is nothing within the Framework Agreement or the WTD which stipulates that Member states should retrospectively adjust leave already accrued and perhaps taken when a worker changes their working pattern.

However, a new calculation must be performed to reflect the annual leave entitlement going forward, based on the new working pattern. In effect the number of units of annual leave whether it be calculated on the basis of hours, days or weeks must be calculated separately for each period where the working pattern differs.

The units of paid annual leave already taken during the period of part-time work which exceeded the right to paid annual leave at that time must be deducted from the newly accumulated rights during the period when the worker increased their hours.

 

JSC MOTIF lime  Comment

We think it is easier to clarify the impact of this case by calculating Greenfields’ annual leave entitlement.

The starting point is the statutory right to annual leave of 5.6 weeks. Most employees accrue leave month by month. This amounts to 0.46 weeks leave per calendar month.

By the end of July, Greenfield had accrued 0.93 weeks’ leave. If a full day is 8 hours amounts to 7.44 hours. She took 7 days leave (56 hours) so 48.56 hours in excess of her entitlement.

By 1st November her average working week was 2.5 days. From August to 1st November she accrued 1.38 weeks leave. She was therefore entitled to 27.6 hours leave but had already taken 48.56 hours in excess of her entitlement.

The option at this stage is to explain to the employee that in order to be eligible for 6 days holiday she must continue to work on average 2.5 days a week for the remainder of the leave year. She would accrue 4.67 weeks leave from August to June. On this working pattern that amounts to 12.2 days leave or 93.3 hours. As she has already taken 48.56 hours she was entitled to 49.74 hours or 6.22 days.

Julie Bann

 

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