Untaken Annual Leave-Is a Policy of ‘Use it or Lose it’ Lawful?

stressed employee

“Use it or lose it” is a policy adopted by a great number of employers in respect of annual leave. But are they legally entitled to do so?

Two recent decisions from EU law clarifies the position.

In Kreuziger v Land Berlin the employee, Mr. Kreuziger, a legal trainee, never took annual leave. When his traineeship came to an end he sought payment in lieu of the leave he had not taken. Land Berlin refused this request and Mr. Kreuziger took legal proceedings in the German Courts.

A similar case came before the German courts in Max Planck v Shimizu. The employee had accumulated 51 days annual leave over a 2 year period and requested that he be paid for this untaken leave when his employment ended.

The German Courts referred the issue to the European Courts in the form of the Court of Justice of the European Union (CJEU) and asked the question whether an employee who fails to take annual leave is entitled to be paid in lieu of the leave foregone, even in a situation where there was nothing preventing the employee from taking the leave.

CJEU

The Court of Justice of the European Union (CJEU) held that it was acceptable for employers to adopt a “use it or lose it” policy in circumstances where there is nothing preventing the employee from taking the leave and the employer encourages the employee to take the leave. But the employer must be able to show that he encouraged the employee to avail of the annual holidays.

It also held that Article 7 of the European Working Time Directive only provides an entitlement to be paid for leave accrued but not taken where the employment is terminated.

In the normal course of employment the employee has no entitlement to give up the annual leave and expect to be paid instead.

Takeaway for employers and employees

  1. Employers do not have to force employees to take annual leave but they should certainly encourage them and document those efforts.
  2. The employee cannot let the leave go untaken and accumulate and expect to be paid.
  3. If the employee is not encouraged or permitted to take leave she will be entitled to be paid in lieu of all untaken leave.

Read the full case of the Court of Justice here: Case C‑619/16 Sebastian W. Kreuziger v Land Berlin

Summary of Statutory Leave Entitlements in Ireland-a Quick and Easy Guide

parental-leave-ireland

Are you confused about statutory leave in Ireland?

I don’t blame you-it can be very confusing.

Here is a quick and easy guide to statutory leave entitlements in Ireland. I hope you find it helpful. (Please read this disclaimer, though).

Annual Leave

Full time employee

4 working weeks where employee works in excess of 1,365 hours

Part time employee

8% of the hours worked in a leave year or

1/3 of a working week for each month in which the employee worked in excess of 117 hours

Relevant legislation: Organisation of Working Time Act, 1997.

Read also: How to calculate holiday entitlements

 

Public Holidays

There are 9 public holidays in Ireland.

The employee is entitled to a paid day off on the holiday, or a paid day off that month, or an extra day’s annual leave, or an extra day’s pay.

Relevant legislation: Organisation of Working Time Act, 1997.

 

Maternity Leave

Female employee is entitled to

  • 26 weeks’ unpaid maternity leave (may qualify for maternity benefit)
  • 16 weeks’ additional maternity leave (no maternity benefit)

Note: the contract of employment may provide for pay during maternity leave, but there is no legal obligation on the employer otherwise.

  • Reasonable time off for medical visits connected with pregnancy

Relevant legislation: Maternity Leave Act, 1994 and Maternity Protection (Amendment) Act, 2004.

Read: Maternity Leave in Ireland-what you need to know

 

Adoptive Leave

24 consecutive weeks’ unpaid leave for female, and additional 16 consecutive weeks unpaid.

Relevant legislation: Adoptive Leave Acts, 1995-2005

Read also: Carers Leave, Force Majeure Leave, Parental Leave and Adoptive Leave in Ireland

 

Carer’s Leave

13-104 weeks if continuously employed by that employer for 12 months.

Relevant legislation: Carer’s Leave Act, 2001.

Read also: Carers Leave, Force Majeure Leave, Parental Leave and Adoptive Leave in Ireland

 

Parental Leave

18 weeks unpaid leave for each child under the age of 8 (child with long term illness under 16 years). There is no social welfare benefit like maternity benefit.

Read also: New Parental Leave Law in Ireland

 

Paternity Leave

2 weeks’ paternity leave for fathers. This will be paid at a rate of €230 per week and will be based on the same prsi requirements as maternity leave.

 

Force Majeure Leave

3 days in any 12-month period or 5 days in a 36-month period. Force Majeure leave is paid leave.

Read also: Carers Leave, Force Majeure Leave, Parental Leave and Adoptive Leave in Ireland

Parental, Carers, Maternity and Adoptive Leave Claims to the Workplace Relations Commission (WRC)

parental-leave-ireland

There are a number of claims you can bring to the Workplace Relations Commission (WRC) in respect of adoptive leave, carer’s leave, parental leave, force majeure leave, and maternity leave.

Adoptive Leave

  1. Have you been granted adoptive leave entitlements?

Section 6 of the Adoptive Leave Act, 1995 entitles employed adoptive mothers or sole male adopters to a minimum period of adoptive leave of 24 weeks.

Section 9 of the Adoptive Leave Act, 1995 entitles an adopting father to adoptive leave where the adopting mother has died.

  1. Have you been granted additional adoptive leave rights?

Section 8 of the Adoptive Leave Act, 1995 entitles you are also entitled to take an additional 16 weeks’ unpaid additional leave after your adoptive leave end

Section 10 of the Adoptive Leave Act, 1995 entitles the adopting father to additional adoptive leave where the adopting mother has died

 

Carer’s Leave

  1. Have you been granted your carer’s leave?

An employee with 12 months’ continuous service is entitled to carer’s leave of 104 weeks to provide full-time care and attention to a relevant person.

An employee shall not be entitled to carer’s leave during the same period in which another employee is absent from employment on carer’s leave for the purpose of providing full-time care and attention to the same relevant person.

Section 6 of Carer’s Leave Act, 2001.

  1. Have you, on the expiry of your carer’s leave, been allowed to return to work or been offered a suitable alternative employment
  • An employee’s contract on return to work must not be less favourable than that under which they were employed before the absence on Carer’s Leave

Section 14 Carer’s Leave Act, 2001

  • An employee is entitled to return to work but it is not reasonably practicable for the employer to permit the employee to return to work the employee shall be entitled to be offered by their employer a suitable alternative employment under new contact of employment

Section 15 Carer’s Leave Act, 2001

 

Parental Leave

  1. Did you receive your entitlement to parental leave?

            An employee who is the natural, adopting or adoptive parent of a child who has complete on year’s continuous employment is entitle to unpaid parental leave of 14 working weeks.

Section 6 Parental Leave Act, 1998

Note: this entitlement has changed to 18 working weeks-read the new parental leave entitlements in Ireland.

Section 7 Parental Leave Act, 1998 sets out the manner in which the leave can be taken.

         Force Majeure Leave

Where an employee shall be entitled to leave with pay from his employment for urgent family reasons (injury, illness etc)

Maximum force majeure leave which may be availed is 3 days in 12 consecutive months or 5 days in 36 consecutive months

Section 13 Parental Leave act, 1998.

  1. On the expiry of your parental leave have you been allowed to return to work or were offered suitable alternative employment?

An employee’s contract on return to work must not be less favourable than under which they were employed before the absence on parental leave

Section 15 Parental Leave Act, 1998.

Where it is not reasonably practicable for the employer to permit the employee to return to work the employee shall be entitled to be offered by the employer suitable alternative employment under a new contract of employment

Section 16 Parental Leave Act, 1998

Maternity Leave

  1. Did you receive your entitlement to maternity leave?
  • Pregnant employees are entitled to 26 weeks’ maternity leave
  • If the baby’s late birth means that an employee was less than 4 weeks’ maternity leave remaining after the week in which her baby was born she may extend her maternity leave to ensure that she has a full 4 weeks off following the week of the birth
  • An employee who has taken her maternity leave may be entitled to additional maternity leave of up to 16 weeks

Section 8 Maternity Protection Act, 1994

How to Manage Sickness Related Absence in Your Workplace, and Reduce Costly and Time Sucking Claims

sickness-policy

Are you an employer?

Have you a member of staff absent from work due to illness?

Do you worry about how to properly manage employees’ absence?

Are you concerned that you’re not sure how to manage sickness related absence?

Many of my clients were in the same boat.

But they’re not worried anymore.

Do you want to know what they’ve done to get some peace of mind in this area?

And to do the same?

Draw up a sick leave absence management policy and procedure

A sick leave absence management policy and procedure is a bit of a mouthful, isn’t it?

Basically, you want to have a policy in place which sets out clearly what procedure is to be adopted when an employee is absent through illness.

This allows you and employees know what exactly is going to happen, and the procedure to be followed.

It’s fair because it will apply to all employees.

And it provides much appreciated clarity for everyone.

This policy should make clear:

  1. whether there is a sick pay scheme
  2. what the notification and certification requirements are when an employee is out sick
  3. that the employee can be required to attend a doctor nominated by the employer for medical assessment.

Medical certs-when, and how frequently, are they required?

You can decide how soon you require a medical certificate from an employee.

What follows is not set in stone, and you can adapt it to suit your circumstances. But, if you do follow these steps, or similar ones, you won’t go too far wrong.

So, on the 1st day of illness, the employee should be required to notify his line manager as soon as possible before scheduled commencement of duty.

He should also be expected to report the general nature of  the illness and expected return to work date.

On the 3rd working day, he must forward a medical cert. to you.

You can choose whether it is the 3rd working day or 4th working day when the cert is required-it’s your decision-but make it clear in your policy document, and ensure that all employees have received a copy of your sick leave absence management policy.

The duration of the medical certs. should also be specified, with weekly certs being submitted initially.

Requiring weekly medical certs for short term absence and accepting monthly certs for long term absences is widespread, and sensible, practice.

It is helpful, also, to define in your policy what is short term absence, what’s long term, and what is unauthorised absence.

Generally, short term absence would be 4 weeks or less, while long term absence would be an absence of more than 4 weeks.

Unauthorised absence is an absence which is not supported by a doctor’s note/cert, or not authorised by management, or not communicated using the correct procedure.

Unauthorised absences would be addressed through your workplace disciplinary procedure.

You do have one, don’t you?

Regular contact should be maintained with the employee to ascertain how he is, and the likely return to work  date.

This is also useful to maintain the employee’s’ connection to the workplace, but should be on a needs basis-for example to ensure the medical certs are being submitted- and not too intrusive or pushy.

When the absence is for 3 or 4 months, it may be time to take a closer look at the absence, and the likelihood of a return to work at all.

An appointment with the company doctor or occupational physician may be arranged at this stage, at the expense of the employer.

It may be time to invite the employee in for a chat, and a discussion including letting the employee know that his employment is under review due to the absence and the question of capacity to do the job will have to be addressed.

She should be able to give an assessment of the likelihood of a return to work, when, and whether there is anything you, as an employer, should be doing to facilitate a return to work.

The doctor or occupational physician may suggest a phased or temporary return to work. This can be monitored and re-assessed after 4-6 weeks.

Before any decision is made, though, about termination of the contract on the grounds of capability, the employee should be invited to make a submission to influence the decision, and fair procedures must be followed.

The medical report should support a decision to terminate by indicating that there is no reasonable prospect of a return to work within a reasonable timeframe.

Unfair Dismissals Act, 1977, section 6(4):

 

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

 

 

Do remember, though, that the decision to terminate the employment is yours to make, and you cannot hide behind the medical assessment and blame the doctor or try to pin the responsibility on him.

Hopefully, there will be no need to terminate and the employee can return to work.

Return to work follow up

When the employee returns to work, you should:

  1. acknowledge the return to work
  2. request staff to submit a “fit to resume” doctor’s note, by the resumption date, following long term sickness absence. Unless a “fit to resume” note is furnished, employee to be given up to a week to produce one and/or not allowed to return to work without one
  3. try to facilitate a partial return to work where the employee requests it.

In any event, you should interview all employees, regardless of how long they have been out or their illness, prior to their return to work.

Role of occupational health provider/company doctor

Your sickness absence management policy needs to make clear that an employee can be requested to attend your doctor or medical advisor for medical examination and that you, as employer, are entitled to receive details of such medical assessments.

Your occupational health provider/doctor should be able to

  • carry out pre-employment medical assessments;
  • provide advice on health related matters which affect employees’ work;
  • advise about employees fitness to undertake his full range of duties and to make recommendations on measures to assist his return to work;
  • advise on employee’s fitness to undertake modified or alternative duties;
  • advise you about areas of support for health related problems which may be affecting employment.

Quit worrying about sickness related absence

Stop worrying unduly about employees being out sick.

Get a policy drawn up to manage absences, enforce it consistently and fairly, and make sure all employees have been given a copy.

You will reduce your stress, increase your peace of mind, and significantly diminish employment related claims-for stress and unfair dismissal- against you.

New Parental Leave Law in Ireland-Family Leave Changes

parental-leave-ireland

Budget 2016 saw new parental leave entitlements being announced.

Statutory paternity leave of two weeks was announced and is to take effect in September 2016. This will be paid at a rate of €230 per week and will be based on the same prsi requirements as maternity leave.

Up to now most men would have to take unpaid leave-with the employer’s agreement-or holidays.

Parental leave has been available to men and women since 1998 but the uptake amongst men is as low as 5% because it is unpaid.

Employers should consider drawing up paternity leave policies for the new regime to set out how the employee can apply, and other details.

Prior to this change, the entitlement to parental leave in Ireland changed on 8th March, 2013 when the EU Parental Leave Directive 2010/18/EU was transposed into Irish law.

The Irish Government indicated prior to  that they would be publishing a new Family Law Bill which will bring all existing family leave legislation into one Act.

This new Family Law Bill will therefore cover carer’s leave, parental leave, maternity leave, and adoptive leave.

Parental Leave Changes March 2013

Here is a summary of the changes in relation to parental leave when EU Parental Leave Directive 2010/18/EU is transposed into Irish law on 8th March, 2013.

UPDATE 8th March, 2013

Statutory Instrument no. 81 of 2013, European Union (Parental Leave) Regulations 2013, transpose EU directive 2010/18 EU into Irish law with effect from 8th March, 2013.

Click on the link above to read the regulations.

Summary of EU Parental Leave Directive 2010/18/EU

Workers are entitled to parental leave on the birth or adoption of a child. Such leave may be taken until the child has reached an age determined by national law and/or collective agreements, but before the age of eight.

This Directive applies equally to all workers, men and women, irrespective of their type of employment contract (open-ended, fixed-term, part-time or temporary).

Parental leave shall be granted now for up to 18 weeks.(See Parental Leave Regulations, 2013 above)

In principle, workers should be able to take all of their leave. It should therefore not be transferable from one parent to the other. However, such transfers may be authorised on condition that each parent retains at least one of the four months of leave.

Taking of leave

The conditions of access to leave and adaptability of leave shall be defined by national law and/or collective agreements. For example, European Union (EU) States and/or social partners may:

• adapt leave to the needs of parents and employers, by granting leave on a full-time or part-time basis, in a piecemeal way or in the form of a time-credit system;

• make this right subject to a length of service qualification which shall not exceed one year. Where appropriate, that period shall be calculated taking account of all of the successive fixed-term contracts concluded with the same employer;

• authorise the postponement of leave by the employer, for justifiable reasons related to the organisation;

• authorise special arrangements to ensure the proper operation of small undertakings.

Workers wishing to take parental leave must give notice to the employer. The period of notice shall be specified in each EU country taking into account the interests of workers and of employers.

Each EU country shall also be encouraged to define additional measures and/or the specific conditions for the taking of leave by adoptive parents and parents of children with a disability or a long-term illness.

Taking Parental Leave In Ireland

The 18 weeks per child may be taken in one continuous period or in 2 separate blocks of a minimum of 6 weeks. There must be a gap of at least 10 weeks between the 2 periods of parental leave per child. However, if your employer agrees you can separate your leave into periods of days or even hours.

Section 11 of the Parental Leave Act, 1998 allows the employer to postpone the leave for “substantial reasons” (“would have a substantial adverse effect on the operation of his or her business, profession or occupation”).

Transfer of leave between parents:

Where 2 or more parents in respect of a child are entitled to parental leave in respect of the child and the parents are each employed by the same employer, then each relevant parent shall, subject to the consent of the employer concerned, be entitled to transfer part, not exceeding 14 working weeks, of the period of his or her parental leave to any other relevant parent in respect of the child.

Return to work and non-discrimination

After taking parental leave, workers shall have the right to return to the same job. If that is not possible, the employer must offer them an equivalent or similar job consistent with their employment contract or employment relationship.

In addition, rights acquired or in the process of being acquired by the worker on the date on which parental leave starts:

• shall be maintained as they stand until the end of the leave;

• shall apply at the end of the leave, as shall all changes arising from national law, collective agreements and/or practice.

Similarly, workers shall be protected against less favourable treatment or dismissal on the grounds of an application for, or the taking of, parental leave.

All matters regarding social security and income in relation to parental leave are for determination by EU States and/or national social partners. The Agreement does not therefore contain any stipulations concerning the payment of salary or compensation during parental leave.

Finally, on their return from leave, workers must be able to request changes to their working hours and/or patterns for a set period of time. Employers shall consider and respond to such requests, taking into account both employers’ and workers’ needs.

Leave on grounds of force majeure

Workers may also request leave on grounds of force majeure for family reasons.

Such leave may be requested in particular in cases of sickness or accident making the immediate presence of the worker within the family indispensable.

Section 13 of the Parental Leave act, 1998 states:

13.—(1) An employee shall be entitled to leave with pay from his or her employment, to be known and referred to in this Act as “force majeure leave”, where, for urgent family reasons, owing to an injury to or the illness of a person specified in subsection (2), the immediate presence of the employee at the place where the person is, whether at his or her home or elsewhere, is indispensable.
(2) The persons referred to in subsection (1) are—
(a) a person of whom the employee is the parent or adoptive parent,
(b) the spouse of the employee or a person with whom the employee is living as husband or wife,
(c) a person to whom the employee is in loco parentis,
(d) a brother or sister of the employee,
(e) a parent or grandparent of the employee, and
(f) persons of such other (if any) class or classes as may be prescribed.
(3) When an employee takes force majeure leave, he or she shall, as soon as reasonably practicable thereafter, by notice in the prescribed form given to his or her employer, confirm that he or she has taken such leave and the notice shall specify the dates on which it was taken and contain a statement of the facts entitling the employee to force majeure leave.
(4) Force majeure leave shall consist of one or more days on which, but for the leave, the employee would be working in the employment concerned but shall not exceed 3 days in any period of 12 consecutive months or 5 days in any period of 36 consecutive months.
(5) A day on which an employee is absent from work on force majeure leave in an employment for part only of the period during which he or she is required to work in the employment on that day shall be deemed, for the purposes of subsection (4), to be one day of force majeureleave.

Even though force majeure leave is included in the Parental Leave Act, 1988 it is paid leave while parental leave is unpaid.

Context

This Directive introduces the revised Framework Agreement concluded by the European social partners on 18 June 2009. This Agreement follows the Framework Agreement of 14 December 1995 on parental leave.

2010/18/EU

Legislation

Parental leave Act, 1998

Parental Leave (Amendment) Act, 2006

Statutory Instrument no. 81 of 2013, European Union (Parental Leave) Regulations 2013

Parental Leave (Amendment) act 2019

 Redress

Breach of the Parental Leave Act, 1998 can see a Rights Commissioner awarding up to 20 weeks remuneration in compensation to the employee (Section 21 of the Parental Leave Act, 1998)

New parental leave from September 2019

Your parental leave entitlements are due to change from September 2019. Parental leave for parents of eligible children will increase from 18 weeks to 22 weeks from 1 September 2019.

From 1st September 2020 it will go from 22 weeks to 26 weeks.

Parents of children under the age of 12 will be able to take 26 weeks unpaid leave from their job; currently it is capped at 18 weeks per child.

Paid parental leave

From November 2019 it is expected that new parents will be entitle to a new parental leave benefit of two weeks paid leave each during their child’s first year. This is not transferable between parents, however, and the required legislation has not yet been enacted (August 2019).