In a French reference involving the holiday entitlement of a worker on sick leave, the European Court of Justice has decided that workers in the public sector can rely on the Directive in claims against their employer. This is important because of inconsistencies between the way the European Court has interpreted the Directive and the holiday entitlement ostensibly conferred by the Working Time Regulations. The inconsistency is particularly apparent in relation to the holiday entitlement of sick workers, since the Regulations forbid carrying forward holiday entitlement. If a worker is off sick for the whole of a holiday year, there is no other way of preserving this entitlement, unless the worker is prepared to take holiday and sick leave concurrently.
Until now employment tribunals have been finding various ways to interpret the Regulations in line with the Directive, but there has been no guidance at appeal level as to whether this approach is correct. This case gives claimants from the public sector another way of securing their holiday entitlement, by relying directly on the principles established by the Directive. On the other hand for private sector claims, this case reiterates that if a compatible interpretation of the domestic legislation is not possible, the only option is to claim compensation from the government for failing to implement the Directive correctly. This is a problem that will be addressed in the UK when planned amendments to the Working Time Regulations are brought forward, but we are not sure exactly when this will be. In the meantime it is quite possible that sick workers’ rights to statutory holiday pay will depend on whether they are working in the public or private sector.