Are the holiday floodgates opening?

Prepare
for yet another change in the Working Time Rules: that is the message from the
European Court in the latest stage of the Bectu case. Jonathan Chamberlain
explains

Bectu
has been challenging the UK Government over the implementation of the EC
Working Time Directive (93/104 EC). This became law in the UK under the Working
Time Regulations 1998.

The
Union’s complaint is that regulation 13 (7) of the UK Regulations specifies
that workers only become entitled to paid holiday once they have worked for an
employer for more than 13 weeks continuously. The effect of this rule was to
exclude many workers on short term contracts from the right to paid holiday.

The
Advocate General has now said that the 13 week qualifying period is unlawful. No
qualifying period is allowed under the original European legislation.

The
opinion is only advisory; it is not binding on the full court. However, the court
usually follows opinions and this opinion is particularly strong. It is very
likely it will become law.

This
change is very likely to mean increased costs and bureaucracy, but it is too
early to say how much of either.

HR
managers need not do anything immediately. First, there is still another stage
in the legal process. And, the ruling will only affect the Government, not
employers directly, even if those employers are in the public sector.

If
the Opinion is followed it will mean that the UK Government will have to change
the current rules. Employers will be worried that contract workers may become
entitled to 20 days paid holiday on the day they start work. However, the
Advocate General did say that the Government could, if it wanted, make
provision for the right to holiday to accrue over time. So, workers on short
term contracts are very likely to receive the right to a few days paid holiday,
but they may not get the right to all that holiday on day one.

If
the opinion is upheld, the Government will has two options: try to persuade a
majority of the other 14 member states to amend the directive (which is unlikely),
or amend the UK Regulations.

The
Government tried to wring out a benefit for British employers but it seems they
haven’t managed it. Now employers will pay a double price: new rules and new
costs under those rules.

By
Jonathan Chamberlain, employment partner at solicitors Wragge & Co

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