Following on from our update on 13 January last, the Labour Court has issued another interesting decision on the accrual of annual leave whilst on sick leave. In the case of Seclusion Properties Limited v. Kieran O'Donovan (DWT14114), the Labour Court held that a worker on sick leave was not entitled to accrue annual leave. The Rights Commissioner awarded the claimant €2,200 for annual leave accrued and not paid to him. The employer appealed the case to the Labour Court.

Similar to the earlier decision referred to above, the Labour Court reiterated that the doctrine of direct effect had no application as the employer was in the private sector. The next question for the Court was whether or not the doctrine of indirect effect could apply. The doctrine of indirect effect or "conforming interpretation' as it is now known, means that having interpreted Irish legislation as far as possible, in the light of the wording and purpose of the Directive, in order to try and produce the result intended under the Directive, it was possible to construe the Irish legislation in a way that complied with the Directive. The Labour Court acknowledged that its jurisdiction was limited to make any declaration on the compatibility of Irish legislation with EU law and subsequently proceeded to look at the interpretative tools at its disposal to see if the result sought could be achieved. It examined whether any interpretative methods known to Irish law could be employed by the Court to produce the result contented for by the claimant and avoid a contra legem (against the law) result. However, it came to the conclusion that there was no such tool available whereby it could construe the Organisation of Working Time Act in the manner requested. The Irish legislation as drafted is clear and no tool of statutory interpretation could result in a different outcome.

The upshot of the decision is that until the Organisation of Working Time Act is amended employees in the private sector are unlikely to succeed in a claim for the accrual of annual leave while on sick leave. The proposals to amend the legislation to allow for the accrual of annual leave while on sick leave are currently before the Seanad. We will provide a further update when the amendment (which forms part of the Workplace Relations Bill) is enacted.