The Labour Court recently issued an important decision stating that an employee is not entitled to rely on the provisions of the grounding European Working Time Directive against a private sector employer in circumstances where she was claiming an entitlement  to accrue annual leave whilst on sick leave (Sparantus Limited t/aHighfield Healthcare and Agnieska Jemiola DWT 4110).

The claimant in the case stated that the entitlement to four weeks' annual leave, originating from the Working Time Directive (2003/88/EC), cannot be made dependent on the number of hours worked.

The Labour Court held that the Directive cannot have direct effect in a case involving private parties. It went on to add that there are circumstances where direct effect is not applicable and the doctrine of conforming or consistent interpretation can be relied upon. It referred to the Marleasing case and the often-quoted provision "in applying national law, whether the provisions in question were adopted before or after the Directive, the national court called upon to interpret it is required to do so, as far as possible, in light of the wording and purpose of the Directive in order to produce the result pursued by the latter".

The Labour Court noted that this doctrine is "not without its limitations and cannot be used as a basis for a contra legem interpretation of national law". The claimant (who was not professionally represented) did not make any submissions to the Court on the doctrine of conforming or consistent interpretation as it applied or might apply to the claimant's case. It is possible that, had this been argued, a different outcome may have been arrived at by the Court.

The Court said that it had to apply domestic law as it stands and accordingly found that the respondent employer did not contravene section 19 of the Organisation of Working Time Act 1997 in calculating the claimant's entitlement to annual leave in a particular leave year.

Any comfort to be derived from the decision for private sector employers is likely to be short-lived given that the Minister announced his intention in November 2014 to introduce legislation clarifying the rules on the accrual of annual leave whilst on sick leave and rectify the discrepancy under the Irish Act bringing it in line with the European position.