Holiday entitlement under the working time regulations

On 8th February the Advocate General gave his (non legally-binding) Opinion in the case of BECTU v UK. He confirmed that Regulation 13(7) of The Working Time Regulations 1998 is unlawful.

Regulation 13(7) says that workers do not acquire the statutory right to annual paid leave until they have been working for 13 weeks. BECTU, a union with about 30,000 members working mainly as technicians on short contracts in the broadcasting, film, theatre, cinema and related sectors, claimed that there was no justification in the Working Time Directive to impose the 13 week qualifying condition for paid annual leave. Members of BECTU frequently could not satisfy this condition and thus were not getting any paid annual leave under the UK Regulations.

In his Opinion the Advocate-General makes it clear that in his view entitlement to leave is a fundamental right. The limitations which the Regulations impose on entitlement to leave go beyond what the Working Time Directive allows, since they go so far as to preclude entirely, in certain cases, any accrual of that right.

As the European Court of Justice mostly comes to the same or a similar decision as the (advisory) Opinion of the Advocate-General, employers who employ workers on short term contracts should be aware that holiday is likely to accrue pro rata over that period, irrespective of the length of the contract. In practice holiday will not be taken during short term contracts but will have to be paid on the termination of that contract.

The European Courts judgment should follow in about 2 months.

If you require further information on this case or on the practical impact of the Working Time Regulations on your business, please contact Simon Jeffreys or Anthony Fincham at CMS Cameron McKenna by telephone on +44 (0)20 7367 3000 or by e-mail at [email protected] or [email protected].