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News : Irish Last Updated: Apr 12, 2011 - 9:35 AM

Ireland: Employment Law; Irish public sector staff accrue holiday leave when out sick while private sector employees don’t
By Helena Broderick
Apr 11, 2011 - 12:30 AM

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Total employment in the public health sector in Dec 2010 was 132,500 - - at similar level to employment in the foreign owned manufacturing and services sectors in Ireland.

Ireland: Employment Law; this is the second of a series of articles on employment law and HR for employers by Helena Broderick who is the Managing Consultant with CollierBroderick Management Consultants. If you wish to contact Helena with regards services, you can do so here or by email or visit www.collierbroderick.ie.

Ireland: Employment Law; The decision of the European Court of Justice (ECJ), issued in 2009, that an employee who is on long-term sick leave retains their right to annual leave/holidays, caused consternation at the time for employers.

The ruling, arising from case C-350/06 and Stringer v HRMC, states that employee’s who have not worked during the leave year because they are on sick leave, are entitled to their statutory annual leave for that year.

According to this ruling, employee’s are entitled to accumulate annual leave while on sick leave.

Given the recent furore last week about the Irish government's effort, and lack of success, in ending the 'King's Birthday' and 'Empire Day' privilege days' for civil servants in Ireland, it is interesting to revisit the 2009 decision of the ECJ and see how it is being implemented in Ireland.

Annual Leave in Ireland is based on Hours Worked

In Ireland, the Organisation of Working Time Act 1997 governs the granting of holidays. It states that the employee’s statutory entitlement to annual leave is based on hours actually worked, as follows: 

  • An employee who has worked at least 1,365 hours in the leave year is entitled to the maximum of 4 weeks’ annual leave

  • An employee who has worked at least 117 hours in the calendar month is entitled to 1/3 of his/her hours as holidays, subject to a maximum of 4 weeks

  • An employee who has worked less than 117 hours in the calendar month is entitled to 8% of the hours worked as holidays, subject to a maximum of 4 weeks

As sick leave will reduce the total number of hours worked by the employee,  it may therefore affect his/her entitlement to annual leave.

Employees cannot accrue annual leave while out sick

Thus, unless the Organisation of Working Time Act is amended, the above ECJ ruling that an employee can accrue annual leave while on sick leave is not enforceable in Ireland.

Therefore, in the private sector, for example, if you have an employee who gets 20 days holidays per year and is out sick for 6 months, they only get 10 days holidays for that year?

What about employees in the civil service and public sector?

The civil service and public sector, not surprisingly, has taken a different stance.

Under the principle of ‘direct effect’ it appears that the ECJ ruling is being applied to the public sector in Ireland.

Thus, employees in the public sector can accrue annual leave when they are off work on sick leave.

Direct effect is the principle of European Union Law according to which provisions of union law may, if appropriately framed, confer rights and impose obligations on individuals which the courts of European Union member states are bound to recognise and enforce.

Direct effect has been loosened in its application beyond treaty articles and it now applies to virtually all of the various forms of EU legislation.

What about employees in the not-for-profit sector?

Helena Broderick
In a recent Labour Court case involving the Brothers of Charity (LRC19562) the employer claimed that annual leave does not accrue while an employee is on long-term sick leave and that annual leave is given according to the Organisation of Working Time Act, 1997 i.e. it is based on hours actually worked.

However, the unions involved, SIPTU and INMO (Irish Nurses and Midwives Organisation), claimed that annual leave should accrue during long term sick leave.

The Labour Court found in favour of the employees on the basis that similar workers in the public sector i.e. the HSE, were allowed to accrue annual leave while on sick leave and, thus, as parity already existed between the HSE workers and Brothers of Charity workers on other matters, parity should exist in relation to holidays also.

Holidays for sick leave?

Thus, we now have the bizarre situation where employees in the civil service, public sector and not-for-profit sector could be out sick for the entire year, not do one day of work, and yet obtain their ‘entitlement’ to at least 20 days holidays.

How costly is that for our country?

What sort of message does it send to people that one doesn’t have to work to get holidays?

The ECJ ruling states that the employee retains their entitlement to ‘statutory’ leave. Finally, it would be worth examining the way the public sector are interpreting this aspect of the ruling, given that many employees in the civil service are given more than their ‘statutory’ entitlement.

We saw in recent weeks that senior civil servants receive 30-31 days annual leave while other civil servants receive between 25-29 days annual leave with some receiving below 24 days annual leave.

Is the ECJ ruling being applied to 20 of the days only or all of the annual leave days being provided?

SEE also:

Sick leave in Irish civil service almost doubled since 1980s; Average employee absent for over 11 days in 2007

Senior Irish civil servants spared 'sense of grievance'; Allowed to keep 'King's Birthday' and 'Empire Day' privilege days

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