The annual leave arrangements for the claimant in Greenfield v The Care Bureau Ltd were:
- The claimant's working hours and days differed from week to week and her weekly pay varied according to the number of days or hours of work.
- All her hours were used to calculate her entitlement to paid annual leave, which was based on the statutory full-time entitlement of 5.6 weeks.
- The entitlement was calculated at the date leave was taken, based on the working pattern for the 12-week period prior to the leave.
The facts leading up to the dispute were:
- In her final leave year before she left employment, which started on 15 June 2012, she took seven days of paid leave, in July 2012.
- During the 12-week period immediately before the July 2012 holiday, her work pattern was one day per week. From August 2012 she began working a pattern of 12 days on and two days off taken as alternate weekends – an average of over 40 hours per week.
- In November 2012 she requested a week of paid leave. Care Bureau informed her that she had exhausted her entitlement. She had taken her leave at a time when her work pattern was one day per week and the seven days' leave taken therefore equated to seven weeks of paid leave, more than her 5.6 weeks' entitlement.
The claimant argued that the leave already accrued and taken should be recalculated following her move to "full-time" work in August 2012. The Birmingham Employment Tribunal referred the case to the European Court.
The European Court decided that periods during which an employee works under different work patterns have to be looked at separately and the leave calculated according to the units of time worked in that period. So a move from full-time to part-time work cannot reduce the right to annual leave accrued during the full-time period. On a switch the other way, the employer does not have to recalculate annual leave already accumulated. The new calculation only has to be made for future work at the new level. Paid leave already taken during part-time work which exceeded the leave accumulated during that period can be deducted from the new leave rights going forward.
The Court went on to say that this principle also applies in the same way if (as was the case here) the employment relationship is terminated. But it commented that the allowance in lieu of paid annual leave not taken must be calculated in line with the objective behind European Law on working time. In other words, workers must receive their "normal remuneration" in relation to holiday, whether the holiday is taken or is being paid in lieu at the end of the employment relationship. This might be taken to cast some further doubt on the possibility that the Working Time Regulations allow a payment in lieu of untaken holiday on termination to be less than the calculation during employment. There has already been an employment tribunal decision in 2013 that pay in lieu of statutory entitlement on termination must reflect the pay that the employee would have received if they had taken the holiday while still employed.