The European Court of Justice (ECJ) has reached the unsurprising decision that where a part-time worker’s hours of work are increased, holiday that has already accrued need not be retrospectively recalculated to reflect the increased number of hours worked.
The claimant was a care worker whose working hours varied from week to week. She took seven days’ leave in July 2012 having worked one day a week over the previous 12 weeks – the period during which the accrual is measured for an hourly paid worker. She had therefore taken and been paid for more than her 5.6 weeks’ holiday entitlement. When in August 2012 she subsequently increased her hours and changed her working pattern to a regular 12 days on and two days off she assumed that her holiday retrospectively accrued at a higher rate to reflect her new working arrangements. She applied for one week’s leave in November 2012 which was refused because she had previously taken and been paid for more leave than had accrued under her old working pattern. At first instance the Employment Tribunal ordered her employer, Care Bureau, to pay for the newly accrued week’s holiday.
The ECJ ruled that the employer is not required to make a retrospective recalculation where a worker increases the number of hours they work. Annual leave only had to be paid at the rate specified in terms of days, hours or fractions of days or hours, in the contract of employment applicable at the time. It followed that the excess paid leave that the Claimant had taken should be deducted from the newly accrued increased hours derived holiday entitlement.
Note that this case (Greenfield –v- The Care Bureau) does not resolve long standing questions as to whether holiday should be paid at the rate of pay applicable when the holiday is taken as opposed to when it accrues or how paid holiday should be calculated where work patterns change during a reference period.
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