23 March 2012

Rights of long term sick employees to paid sick leave are directly enforceable

Dominguez v Centre informatique du Centre Ouest Atlantique Dominguez v Centre informatique du Centre Ouest Atlantique is a decision of the CJEC on the Working Time Directive which looked at whether a provision of French law imposing a rule that workers on sick leave must have actually worked for at least a month in a leave year before they could take, or be paid for, any annual leave accrued under the French equivalent of the Working Time Regulations was permissible. The court said no, and then went on to say that the relevant provision of the Working Time Directive are "directly effective". The principle of "direct effectiveness" means that EU Directives which meet certain criteria (as to clarity) can be enforced against the State or an emanation of the State (in other words, Government departments and other public bodies, including some previously nationalised organisations), even if a particular provision has not yet become part of national law.

Why is this case important for us - after all we don't have the same rule in UK law? It is significant because it finally confirms that European cases such as Stringer & ors v HMRC, which state that workers absent on long term sick leave for a whole leave year are entitled to be paid for, or carry forward, holiday they haven't been able to take whilst off sick, can be enforced directly by public sector workers. In their present form, the Working Time Regulations do not permit this, and a change to the rules is in the pipeline, but without any definite date for implementation - so for the time being private sector employees will be in a less favourable position than public sector workers.

Current government proposals to amend the Working Time Regulations to bring them into line with these developments would apply different rules to the additional 8 days provided for in UK law over and above 20 days' minimum leave provided by the Directive - an approach which the CJEC seems to say is acceptable.