The High Court has referred on a union’s challenge to the validity of one of the Working Time regulations.
The latest chapter in the Working Time regulations’ short history is the challenge by the Broadcasting, Entertainment, Cinematographic and Theatre Union in the High Court concerning the validity of Regulation 13(7). The High Court in turn has referred a number of questions to the European Court of Justice to see whether the regulations are compatible with the directive from which they derive.
Regulation 13 now entitles workers to four weeks’ paid holiday a year provided that, in accordance with 13(7), they have worked continuously for the same employer for 13 weeks. During the qualifying period workers accrue holiday and, once the qualifying period is achieved, they are entitled to the full amount of holiday but they receive nothing if they do not get past the initial 13-week period.
Bectu has challenged the requirement for a qualifying period on the basis that the directive does not permit such a pre-condition. Bectu’s concern is that, in effect, the provision deprives most of its members of paid holiday leave, as they are usually employed on short-term contracts.
The Government’s principle argument is that the qualifying period is within the scope of the directive which allows member states to implement the requirement “in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice”.
The ECJ’s Advocate General has now provided his opinion in the case. That opinion is provided for the guidance of the ECJ; it does not bind the court but is usually (although not always) followed.
The Advocate General said that the flexibility for implementing the provisions on paid leave applies only to the “arrangements for implementation”. These may include “the requirement of a minimum period of employment before leave may be taken” but may not, as the UK legislation has the effect of doing, preclude workers from becoming entitled to paid leave.