Ainsworth Update
by Sarah
The Advocate General has handed down his opinion in what was previously known as Ainsworth. This is of particular relevance for our clients who are awaiting the decision. The last position, we have all been following, was that employees off on long term sick did not accrue holiday whilst off on long term sick. This came from the Court of Appeal decision in 2005.
Tha matter was appealed to the House of Lords who referred the case to the ECJ. The Advocate General (whose opinion is normally followed by the full court) has indicated that this decision may well be reversed. Whilst it is common sense that employees cannot take holiday whilst they are off sick, the AG believes that holiday does accrue whilst they are off sick so that if an employee leaves they are entitled to compensation for that holiday even where the employee was off sick for a whole 12 months!
I am not sure that can be right if employees cannot roll over holiday from one year to another under the WTR. Of course these provisions apply to not just employees but the wider category of employees. We will have to watch this space. The full opinion can be found here.
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What about employers who disregard employees rights - the same employees may not wish to cause a stir for whatever reason, lack of alternative employment locally, etc and let the matter slide for months or years?? (The List Design v Douglas point)
Can a blank refusal by an employer to pay holiday pay from the start be held against the employee (and start time running against them there and then)?
There are employers out there - still denying employees right to paid leave - some say no right to paid leave until 13 weeks have passed or the employee’s probation period has expired and some say no holiday pay at all!
Nick L Dime said at January 30th, 2008 at 2:21 pm
It is not possible to comment on individual cases but the difficulty is with time limits for the employees if they do not raise a grievance. If employees do assert their statutory rights then they are protected against unfair dismissal what ever their length of service.
Sarah said at February 14th, 2008 at 6:06 pm