Search
Close this search box.

No backdated recalculation of holiday entitlement where hours increase

Holiday entitlement and pay cases can often be complex, involving some mental gymnastics. Greenfield v The Care Bureau is undoubtedly a case which falls into that category, but once you get to grips with the facts and the mathematics, the European Court of Justice’s (ECJ) ruling gives a very useful indication of the position under EU law where the number of days/hours worked during a holiday year increase.

Holiday entitlement and pay cases can often be complex, involving some mental gymnastics. Greenfield v The Care Bureau is undoubtedly a case which falls into that category, but once you get to grips with the facts and the mathematics, the European Court of Justice’s (ECJ) ruling gives a very useful indication of the position under EU law where the number of days/hours worked during a holiday year increase.

Greenfield (G) was entitled to 5.6 weeks of leave per year. The leave year began on 15 June.Entitlement to paid leave was calculated on the date leave was taken, based on the working pattern for the 12-week period prior to that leave.G left the Care Bureau on 28 May 2013. She took 7 days of paid leave during the final leave year. She worked for a total of 1,729.5 hours and took a total of 62.84 hours of paid leave. G took those 7 days of paid leave in July 2012. During the 12-week period immediately preceding that holiday, her work pattern was 1 day per week.

In August 2012, G’s working days changed to 12 days on and 2 days off giving her an average working week of 41.4 hours of work per week. In November 2012, G requested a week of paid leave. The Care Bureau informed her that, as a result of the holiday she had taken in July 2012, she had exhausted her entitlement to paid annual leave. As she had taken her leave at a time when her work pattern was one day per week, then because the way leave was calculated, she had taken the equivalent of 7 weeks of paid leave and therefore she had exhausted her entitlement to paid annual leave.

G argued at a tribunal that national law, read in conjunction with EU law, requires that leave already accrued and taken should be retroactively recalculated and adjusted following an increase in working hours, for example, following a move from part-time to full-time work, so as to be proportional to the new number of working hours and not the hours worked at the time leave was taken. Having doubts as to the interpretation of EU law, the tribunal asked the ECJ whether G’s interpretation was right.

The ECJ rejected G’s argument. The Court ruled that in the event of an increase in the number of hours of work performed by a worker, Member States are not obliged to provide that the entitlement to paid annual leave already accrued, and possibly taken, must be recalculated retroactively according to that worker’s new work pattern. However, a new calculation must be performed for the period during which working time increased and that calculation must be performed in the same way whether what is being determined is the allowance in lieu of paid annual leave not taken where the employment relationship is terminated, or the outstanding annual leave entitlement where the employment relationship continues.

The ECJ’s ruling confirms that no backdated recalculation of holiday entitlement needs to take place where hours increase, so as to reflect the new working pattern. But a new calculation must, however, be performed for the period during which working time increased. This is the latest in a line of judgments from the ECJ on holiday pay under the Working Time Directive, but as yet, we have not seen any amendments to domestic legislation. Employers should take advice if there is any uncertainty over entitlement, not just where the number of hours/days increase, but also where they reduce. 

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

Read more

Latest News

Read More

Rise in recruitment fraud must urgently be checked

28 March 2024

Newsletter

Receive the latest HR news and strategic content

Please note, as per the GDPR Legislation, we need to ensure you are ‘Opted In’ to receive updates from ‘theHRDIRECTOR’. We will NEVER sell, rent, share or give away your data to third parties. We only use it to send information about our products and updates within the HR space To see our Privacy Policy – click here

Latest HR Jobs

University of Warwick – WMGSalary: £23,144 to £25,138 per annum This provides summary information and comment on the subject areas covered. Where employment tribunal and

The Open University – People ServicesSalary: £57,696 to £64,914 + up to £8,000 per annum MRP supplement* This provides summary information and comment on the

Cardiff UniversitySalary: Competitive This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information

University of Oxford – Oxford Department of International DevelopmentSalary: £28,759 to £33,966 (Grade 5) This provides summary information and comment on the subject areas covered.

Read the latest digital issue of theHRDIRECTOR for FREE

Read the latest digital issue of theHRDIRECTOR for FREE