|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
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.
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:
who has worked at least 1,365 hours in the leave year is entitled to the
maximum of 4 weeks’ annual leave
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
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
As sick leave
will reduce the total number of hours worked by the employee, it may therefore
affect his/her entitlement to annual leave.
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
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
employees in the civil service and public sector?
The civil service
and public sector, not surprisingly, has taken a different stance.
principle of ‘direct effect’ it appears that the ECJ ruling is being applied to
the public sector in Ireland.
in the public sector can accrue annual leave when they are off work on sick
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
effect has been loosened in its application beyond treaty articles and it now
applies to virtually all of the various forms of EU legislation.
employees in the not-for-profit sector?
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.
|Helena Broderick |
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
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
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