The accrual of annual leave: EU law influences WRC decision

I came across an employment case during the week that was a bit of an eye-opener.

It was to do with a claim for unpaid annual leave. Nothing unusual there.

But the claim went back to the beginning of the employment-over 3 years-and the adjudicator made an award for all years.

The surprising point about this is the Organisation of Working Time Act 1997 does not permit going back this far. In fact it states..

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(5) Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

The reason the adjudicator awarded unpaid leave for all years of employment, however, was based on the EU Working Time Directive and two cases from European Law.

These cases are authority for the proposition that where an employer does not permit or does not encourage an employee to take annual leave then the employee’s entitlement to be paid continues to accrue.

It is only where the employee chooses not to take annual leave that his claim would be restricted to the current leave year and the previous one.

Take a look at the cases here.