Given that variation to working patterns seems to be cropping up more often these days as we all attempt to become more agile in our ways of working, it is helpful to consider how to deal with holiday in these circumstances.
The ECJ made it clear some time ago (during 2010 in the totally unpronounceable Zentralbetriebsrat der Landeskrankenhäuser Tirols v Land Tirol of 2010 to be precise) that, where a worker moves from working full-time to working part-time, there can be no reduction in accrued but unused holiday where the person has not been able to take the leave. However, the Working Time Regulations 1998 provide that for annual leave purposes a week’s pay should be calculated when the leave is taken rather than when the leave accrued. Logically, this can mean that, where a worker moves from full-time to part-time work, then even if the leave is accrued during the full-time period (and cannot be taken then so is carried over to the part-time period) it should be paid at the part-time rate.
What happens, though, when a worker moves from part-time to full-time? This was the question addressed by the ECJ in Greenfield v The Care Bureau Limited (C-219/14) in November 2015 where the facts were as follows:
- Ms Greenfield was a care worker whose holiday year ran from 15 to 14 June each year. Her hours varied from week to week.
- She took seven days' leave in July 2012, when for the preceding 12 weeks, she had been working one day per week. The seven days’ leave was therefore equivalent to seven weeks’ leave (ie more than her 5.6 weeks’ annual entitlement).
- In August 2012, Ms Greenfield increased her hours to 12 days on, two days off.
- Ms Greenfield requested a week's leave in November 2012 and was refused on the grounds that she had exhausted her entitlement to paid annual leave in July 2012.
- Ms Greenfield’s employment terminated in May 2013 and she brought a successful claim in the employment tribunal for pay in lieu of leave not taken. The Care Bureau appealed the decision.
- The tribunal revoked its decision and referred the case to the ECJ.
In essence, the question for the ECJ to deal with was whether, when a part-time worker increases to full-time, the employer is required to recalculate the worker’s holiday entitlement. The answer was that it is not. The entitlement to annual leave should be calculated in accordance with working days/hours under the contract of employment. However, a new calculation must be performed to reflect the annual leave entitlement after the change in days/hours, based on the new working pattern. Leave which accrued (and may have been taken) under the old working pattern should be deducted from the new calculation going forward. What this means in practice is that Ms Greenfield had used (in excess of) her full year’s holiday entitlement by taking seven days’ leave in July 2012 and was not entitled to any further holiday.
Whilst the ECJ’s opinion is not especially clear and the Greenfield decision might instinctively not feel right because of its particular facts, it is logical and does mean that the two options (moving from full-time to part-time and vice versa) are treated similarly. What it does not assist with is whether the pay provisions in the Working Time Regulations are compliant with EU law. That is therefore likely to form the basis of an ECJ reference for another day…