accumulated untaken annual leave may not be reduced to reflect
part time hours
The European Court of Justice (ECJ) has held that untaken leave
which accrued when an employee worked full time cannot be reduced
to reflect new part time hours. In Austria civil servants who
changed their number of working hours had their untaken annual
leave allowance adjusted proportionately, even though it had
accrued during the period before their hours were changed. The ECJ
agreed that this was in contravention of EU law and in particular
the right of part-time workers not to be treated less favourably.
The amount of leave should not differ if it is taken after the
period in which it accrued, even though a worker's hours may have
changed. Thus a worker who changes their hours from full time to
part time on their return from parental leave, maternity leave, and
now, following HMRC v Stringer, sick leave, would be entitled to
all untaken holiday which accumulated while they were full time
even if it is taken in the following holiday year.
The judgment throws another spanner in the works for the Working
Time Regulations 1998 (WTR). The WTR provide for leave to be
calculated by reference to a week's pay at the time the leave is
taken, not when it was accrued. It is to be hoped that the review
of the WTR promised by the last government will be carried out.
