Time off entitlements

Outstanding Vacation Leave May Be Granted Until the End of September

Outstanding vacation leave may be granted until the end of September. Previously it had to be granted until the end of March. Despite some discussions on whether this deadline applies already to 2011 vacation leave or only to vacation leave acquired in 2012, eventually the view has prevailed that vacation leave from 2011 is already covered by the new law. It should be noted that it is the employer's duty to grant leave during the year in which the employee has acquired the right to it, and only in particular cases listed in the Labour Code it is possible to deviate from this rule and defer the leave until the following year.

Tags: Vacation

Relapse of Occupational Accident Causes a Postponement of Paid Annual Leave

By Jean-Benoît Cottin

European law rules that a worker does not lose his right to paid annual leave which he has been unable to exercise because of sickness (ECJ, 20 January 2009, Case. And C-350/06 C-520/06 Schultz-Hoff and Her Majesty's Revenue and Customs). The French Supreme Court rules likewise. When an employee has been unable to take annual paid leave during the year he was supposed to, because of absences related to illness, accident or occupational illness, the paid annual leave must be postponed after he returns to work (Cass soc., Feb 3., 2010, No. 07-41446; Cass. soc., September 28, 2011, No. 09-70612).

The judgment of 16 February 2012 decides accordingly that the paid annual leave should be again postponed when the employee has been unable to take the leave because of a relapse.

Note: The European Court of Justice rules that such a postponement is not infinite: national rules may set a temporal limit on the accumulation of unused entitlements to paid annual leave acquired during a period of unfitness for work. However, the period set by that limit must be substantially longer than the reference period in respect of which it is granted. Therefore, the Court considers that a carry-over period of 15 months, as the case submitted to the Court, may reasonably be envisaged as it is not contrary to the purpose of the right to paid annual leave, in that it ensures that that right retains its positive effect for the worker as a rest period (ECJ, 22 November 2011, Case. C-214/10, KHS).

[Cass. soc., February 16, 2012, No. 10-21300, FS-P + B]

Plans for Flexible Parental Leave Unveiled

By James Walters

Family with a Baby.jpgThe UK Government's latest employment law consultation paper, Consultation on Modern Workplaces (PDF), sets out plans to introduce a new system of flexible, shared parental leave. This would build upon the Government's decision earlier this year to implement the previous Labour administration's legislation on additional paternity leave with effect from April 2011.

Other proposals covered by the consultation include:

  • Extending the right to request flexible working to all employees.
  • Amendments to the Working Time Regulations 1998 (WTR) relating to annual leave entitlement and its interplay with sickness absence.
  • Mandatory equal pay audits for employers who are found by an Employment Tribunal to have discriminated on grounds of sex in relation to pay.
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Holidays Falling on Days Off

Effective 1 January 2011 employers will not have to grant a day off for a holiday which falls on a Saturday or another free day resulting from the work schedule. Currently, when a holiday falls on such a free day, it must be compensated for with another day off granted to employees. The change results from an amendment to Art. 130 of the Labour Code. "In exchange" for this the employees get an additional statutory day off - Epiphany, on 6 January.

Prince Edward Island Amends Employment Standards Act

Provincial Flag of Prince Edward IslandBill 2 (pdf), the Employment Standards Amendment Act, 2009, which amends Prince Edward Island's Employment Standards Act, came into force on October 1, 2010. Among other things, the Bill:

  • Increases vacation entitlement after eight years of service;
  • Increases paid sick leave after ten years of service;
  • Adds one day of paid bereavement leave; and
  • Enhances maternity, paternity and adoption leaves.

European Court of Justice Finds Spain's Breastfeeding Leave Statute Inconsistent with Equal Treatment Directive

Under Spanish Law, employed mothers shall be entitled, for the purpose of feeding an unweaned child under nine months of age, to take an hour off during each workday. In addition, the relevant law points out that breastfeeding leave may be taken by the mother or the father without distinction, provided that they are both employed (Section 37.4 Workers´ Statute).

The case in dispute derives from this last legal statement, whose interpretation has brought much confusion regarding breastfeeding before the Spanish labour courts. In the case considered, the employer rejected a male worker's request to enjoy such leave because the mother of the child was not employed, but self-employed. The High Court of Justice of Galicia wonders whether the right to leave should not be accorded to men in the same way as women, and whether the fact of restricting it to employed women and the fathers of their children is not a discriminatory measure contrary to the principle of equal treatment and to Directive 76/2007.

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Russian Government Considers the Draft Federal Law Regarding ILO Paid Leaves Convention

The draft federal law "On ratification of the Convention N 132 "On paid leaves" of the International Labor Organization" is now under consideration of the Government of the Russian Federation.

The Convention was adopted on June 24, 1970 and stipulates the main rights of individuals on guaranteed annual paid leave. According to the provisions of the Convention, each member of the International Labor Organization upon its ratification is obliged to establish a minimal term of paid annual leave as well as the categories of employees it shall apply to. Therefore the draft federal law on ratification of the Convention envisages that the guaranteed annual paid leave in Russia comprises 28 calendar days and is applicable to the employees both of agricultural and non-agricultural economic sectors.

The currently effective legislation of the Russian Federation complies with the Convention. But the Government intends to ratify it in order to constitute Russian legislation basing on universally recognized norms of labor law which serve as the basis for all national labor laws.

The World Cup's Impact in the Workplace

FIFA World Cup TrophyOn June 11, the world's largest sporting event - the World Cup - will begin its month-long series of games in South Africa. This football competition (soccer, to Americans), which takes place every four years, will no doubt dominate the attention and water cooler conversations of sports fans in every workplace. The games are scheduled to be broadcast in the United States between 7:30 a.m. and 5:00 p.m. ET, which is the entire work day for most industries. As a result, U.S. employers will face certain challenges in maintaining productivity, limiting absenteeism, and preserving civility in the workplace.

For example, employers should be prepared for the possibility of more frequent requests for days/time off, as well as unscheduled absences. It would behoove employers to review their absence and vacation/paid leave policies in anticipation of the World Cup, and to determine in advance how strictly these policies will be enforced during the event. Also, employees may spend a great deal of time watching the games via their computers, which not only impacts productivity, but also network bandwidth. Employers that monitor personal Internet use should remind employees of this practice.

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Employment Newsnotes (Issue 48, Spring 2010)

LS Image II.jpg LS Newsnotes Issue 48 Spring 2010  (PDF) is an occasional publication by Lewis Silkin covering recent UK employment law developments in an accessible, succinct and entertaining way.  The latest issue includes articles on:

  •  The potential implications of a Conservative government for employment law
  •  Bullying and harassment in the workplace
  •  Tribunal and court decisions rewriting UK employment legislation to comply with EU law
  •  A successful age discrimination claim by a middle-aged employee
  •  Severe weather: employment law issues
  •  Serial litigants in employment tribunals
  •  Employment of children
  • Scope of the right to claim discrimination on grounds of 'philosophical belief'

New Right for Employees to Request Time Off for Training

A new right to request time off to undertake study or training will be available to employees working in businesses in the UK employing 250 or more people, with effect from 6 April 2010.  The law will be extended to all organisations, regardless of size, from April 2011.

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Tags: Training