The Employment Tribunal has confirmed that the European case law allowing workers to carry forward annual leave they can not take because of sickness does not apply to additional leave under the Working Time Regulations. Last year in the Neidel case the European Court of Justice established that it was up to member states to set the requirements for leave which is additional to the mandatory four week entitlement, but until now we have not had a domestic decision applying it.
Entitlement to additional annual leave of eight days was introduced in 2007, and is governed by separate provisions in the Regulations. They say that additional leave may be carried forward into the following leave year if there is provision to that effect in the contract of employment, or in a workforce or collective agreement which applies to the worker. The EAT has now said that these provisions are compatible with the Working Time Directive. In other words, unlike the provisions of the Regulations dealing with the basic four week entitlement, they mean what they say and do not need to be amplified or changed by reference to the underlying Directive.
This means that when faced with a claim for accrued annual leave – typically when the employment relationship ends – employers should distinguish between the core four week entitlement and additional leave. Previous cases, culminating in NHS Leeds v Larner, have established that the core entitlement carries forward when the worker has been unable to take it due to ill-health, even if there has been no express request to that effect. We now know, however, that the same principle does not apply to additional leave. In order to carry this forward, workers must comply with the terms of the relevant agreement with the employer, regardless of the reason why they have been unable to take it in the original leave year.