Money: Time off shouldn't be a privilege, but a right
A European court ruling could soon ensure that all British employees have three weeks' paid holiday. Ian Hunter reports
Wednesday 12 June 1996
Although statute does require employers to supply details of any holiday entitlement granted to employees, it does not impose an obligation to provide paid holiday. According to the TUC, the UK is the only member state of the European Union that does not provide such a right.
The European Working Time Directive, however, which among other things seeks to regulate the number of hours worked by employees, also includes a provision entitling employees to three weeks' paid holiday. This entitlement will extend to four weeks from November 1999.
Not surprisingly the British Government has argued that the Working Time directive constitutes part of the Social Chapter, from which it has opted out, and it is therefore not bound to implement the holiday provision.
It has, however, been successfully argued to date that the directive constitutes a health and safety measure which is not subject to an opt- out. This view was confirmed by the European Advocate General, M Philippe Leger in March this year.
His view is likely to be endorsed soon by the European Court, despite the objections of the British Government. If the European court supports the Advocate General's reasoning, the Government will be required to make the necessary changes to the law by 23 November.
The directive does not make clear whether the entitlement to initially three and eventually four weeks' paid leave includes statutory and public holidays. It does make clear, however, that payment can be made in lieu of holiday only on the termination of employment.
The directive does state that the right to paid holiday is subject to qualifying conditions prescribed by national law or practice. It is unclear precisely how this qualification may be interpreted.
In the same way that employees are not entitled to protection against unfair dismissal or to redundancy pay until they have been employed continuously for two years, it is also possible that the Government may seek to introduce conditions, such as a minimum qualifying period of service, which an employee must accrue before he or she can take advantage of the holiday provisions set out in the directive.
A condition of this type may prejudice contract and part-time, workers however. In recent times part-time workers have succeeded in obtaining the same protection against unfair dismissal as their full-time colleagues. They have also secured the right to participate in their employer's pension scheme.
The argument by which these rights have been secured is that, as the majority of part-time employees are female, provisions aimed at restricting certain benefits and statutory safeguards to full-time employees are discriminatory. It is likely that the same arguments would be put forward to defeat any attempt to exclude part-time workers from the right to holiday if the same right is extended to full-time workers.
Qualifying periods have also been under attack recently. The two-year qualifying required before a claim for unfair dismissal can be brought is presently being reviewed by the House of Lords, on the basis that its length discriminates against women. The House's decision may affect the length of any qualifying period that the Government may seek to impose in relation to holiday entitlement.
If the European court finds against it on the two-year qualifying period for protection against unfair dismissal, the Government is likely to ask for additional time, to enable it to get its legislative house in order.
The directive will not take effect in relation to private-sector workers until the necessary UK legislation is in place. Public-sector workers would, by contrast, have an immediately enforceable right to holiday.
Employees who are not paid holiday pay owing to them can sue for breach of contract in the courts. These claims will usually be heard by the small claims' court which has the jurisdiction to hear claims of up to pounds 3,000.
The alternative is to submit a Wages Act claim in the industrial tribunal. Wages Act claims must be submitted within three months of the date on which it is claimed that the employer failed to make the necessary payments. Contractual claims made in the courts, by contrast, can be pursued up to six years later.
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