Complainant

Respondent

Parties

Theresa  Mcateer

Legal Aid Board

Representatives

  self

Shane Costelloe Holmes O'Malley Sexton Solicitors/ Mary Paula Guinness BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00048239-003

20/01/2022

The Complainant arising from alleged differences in the application of policy changes made during lockdown about accrued vacation leave brings this complaint.

The Respondent stated that it was not responsible for the actions of the National Shared Services Office (NSSO). However, section 9 (4) (d) of the National Shared Services Act 2017 as amended states:

(d) a function of a public service body delegated by the delegation shall, notwithstanding the delegation, as the case may be, continue to be vested in the public service body concerned but shall be so vested concurrently with the Office and so as to be capable of being performed by either the public service body or the Office;

The practice during the pandemic was to roll back/pause annual leave cycles.

On or about the 9th of July 2021 the NSSO informed civil servants that in responding to Covid 19 that rolling back/pausing of annual leave cycles was agreed and implemented to allow staff additional time to build up in the system. Also, a second roll back was allowed where staff had outstanding leave towards the end of the last annual leave cycle.

The claim relates to a breach of the Organisation Working Time Act 1997, a breach of the Workplace Relations Act 2015, a breach of Article 7 of the Working Time Directive 2003/88/EC and breach of Article 31 of the EU Charter of Fundamental Rights of the EU.

The Directive states:

Annual leave

1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated

The Complainant alleged that 14 days annual leave were unlawfully disallowed from her annual leave entitlement on or about the 21st of July 2021. The Claim is made against her employer. However, the calculation of annual leave entitlement is made independently and separate from her employer. The National Shared Services Office administers payroll and holiday entitlement and is a statutory Civil Service Office. The Respondent did not make a decision about the Respondent’s holidays and the calculation was made by the NSSO applying policies consistently and impersonally.

The policy states that:

“prior to the direct effect of CJEU Rulings, it was the position in the Civil Service that annual leave accrued while on sick leave with full or half pay. However, no annual leave accrued when off pay due to sick leave or on pension rate of pay (now temporary rehabilitation remuneration or TRR). The effect of the CJEU Rulings, and the change in legislation, means that in the Civil Service:

·         Statutory annual leave accrues when an individual is on TRR and/or zero rate of pay due to certified sick leave.

·         Periods of sick leave at full and half pay will remain full annual leave entitlements. The statutory leave accrued can be carried over for a period of 15 months post the leave year in which it was accrued

The Complainant alleged that 14 days annual leave were unlawfully disallowed from her holiday entitlement on or about the 21st of July 2021.

The Complainant has misrepresented the position regarding carry over of unused annual leave arising from Covid. The carrying over of unused annual leave is subject to the provision where annual leave acquired during sick leave is discounted after 15 months in accordance with section 20(1)(c) of the OWTA 1997 as amended.

Article 7 Directive 2003/88/EC states:

Annual leave

1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

In 2009 the CJEU made the following preliminary finding:

Judgment of the Court (Grand Chamber) of 20 January 2009 (references for a preliminary ruling from the Landesarbeitsgericht Düsseldorf (Germany) and House of Lords (United Kingdom)) — Gerhard Schultz-Hoff v Deutsche Rentenversicherung Bund

(Joined Cases C-350/06 and C-520/06)

(2009/C 69/04)

Operative part of the judgment

1.

Article 7(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as not precluding national legislation or practices according to which a worker on sick leave is not entitled to take paid annual leave during that sick leave.

2.

Article 7(1) of Directive 2003/88 must be interpreted as precluding national legislation or practices which provide that the right to paid annual leave is extinguished at the end of the leave year and/or of a carry-over period laid down by national law even where the worker has been on sick leave for the whole or part of the leave year and where his incapacity to work has persisted until the end of his employment relationship, which was the reason why he could not exercise his right to paid annual leave.

3.

Article 7(2) of Directive 2003/88 must be interpreted as precluding national legislation or practices which provide that, on termination of the employment relationship, no allowance in lieu of paid annual leave not taken is to be paid to a worker who has been on sick leave for the whole or part of the leave year and/or of a carry-over period, which was the reason why he could not exercise his right to paid annual leave. For the calculation of the allowance in lieu, the worker's normal remuneration, which is that which must be maintained during the rest period corresponding to the paid annual leave, is also decisive.

The Organisation of Working Time Act 1997 as amended at section 20 states:

(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee—

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year

In April 2020 the Complainant returned to the workplace having been on sick leave since May 2017.

I note that in Sebastian W  Kreuziger v Land Berlin In Case C‑619/16, the Court stated:

41

Thirdly, as is apparent from the very wording of Article 7 of Directive 2003/88 and the case-law of the Court, it is for the Member States to lay down, in their domestic legislation, conditions for the exercise and implementation of the right to paid annual leave, by prescribing the specific circumstances in which workers may exercise the right (judgment of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph 28 and the case-law cited)

42

In that regard, the Court has in particular held that Article 7(1) of Directive 2003/88 does not in principle preclude national legislation which lays down conditions for the exercise of the right to paid annual leave expressly conferred by the directive, including even the loss of that right at the end of a leave year or of a carry-over period, provided, however, that the worker who has lost his right to paid annual leave has actually had the opportunity to exercise the right conferred on him by the directive (judgment of 20 January 2009, Schultz-Hoff and Others, C‑350/06 and C‑520/06, EU:C:2009:18, paragraph

The Complainant’s case is that she was not informed accurately and in good time that her leave would drop off.

The Respondent stated that the Complainant was treated no differently to others and that the 15-month rule was well communicated to her, and that information was available online.

The Complainant has not made out a case that she was denied the right to take accrued statutory leave, rather that she was treated differently to others who were allowed to carry over accrued leave arising from Covid.

On the facts of this case there has been no breach of Section 20 (c) of the Organisation of Working Time Act 1997 as amended. Also, on the facts no breach of Article 7 of the Working Time Directive 2003/88/EC has occurred, and no breach of Article 31 of the EU Charter of Fundamental Rights of the EU has occurred.

The Complainant had accrued holiday entitlement when on sick leave and had the opportunity to take that leave. The rules of the scheme were clearly communicated and when carry over would apply. The rules also stated clearly when that carry over must be taken. This is not a case of being unable to take the leave, rather not exercising the right to accrued leave during the designated period.

Reference to how others may have been treated differently, which it is denied, is not a basis to ground this claim as the opportunity to take the accrued leave existed and was not taken. It may have been a mistake to misread a policy assuming all accrued leave could be carried over; however, that does not constitute a basis for stating that the Respondent had breached the Directive and the Organisation of Working Time Act. I determine that the complaint is not well founded.

The Complainant’s case is that she was not informed accurately and in good time that her leave would drop off.

The Respondent stated that the Complainant was treated no differently to others and that the 15-month rule was well communicated to her, and that information was available online.

The Complainant has not made out a case that she was denied the right to take accrued statutory leave, rather that she was treated differently to others who were allowed to carry over accrued leave arising from Covid.

On the facts of this case there has been no breach of Section 20 (c) of the Organisation of Working Time Act 1997 as amended. Also, on the facts no breach of Article 7 of the Working Time Directive 2003/88/EC has occurred, and no breach of Article 31 of the EU Charter of Fundamental Rights of the EU has occurred.

The Complainant had accrued holiday entitlement when on sick leave and had the opportunity to take that leave. The rules of the scheme were clearly communicated and when carry over would apply. The rules also stated clearly when that carry over must be taken. This is not a case of being unable to take the leave, rather not exercising the right to accrued leave during the designated period. Reference to how others may have been treated differently, which it is denied, is not a basis to ground this claim as the opportunity to take the accrued leave existed and was not taken. It may have been a mistake to misread a policy assuming all accrued leave could be carried over; however, that does not constitute a basis for stating that the Respondent has breached the Directive and the Organisation of Working Time Act. I determine that the complaint is not well founded.

Accrued Leave