A holiday must be taken within a reasonable time period or the holiday will cease to be considered as providing a rest from work, but rather "a period of relaxation and leisure"

KHS AG v Schulte ECJ Case C-214/10

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26/11/2011

Ever since the judgment in Stringer v HMRC workers on long-term sick leave have been able to accumulate holiday in accordance with Article 7 of the Working Time Directive. The case of KHS AG v Schulte ECJ Case C-214/10 has now defined the limits of Article 7 of the Working Time Directive.

The ECJ has ruled that holiday must be taken within a reasonable time period, here 15 months or it will cease to be considered as providing a rest from work, but "merely a period of relaxation and leisure", inconsistent with the aims of Article 7 of the WTD and therefore not be available to be claimed by the worker.

This german case considered workers who could not claim holiday pay or pay in lieu after the expiry of a "carry over period" of 15 months beginning at the end of the year in which the holiday entitlement had arisen. The Court found that this stipulation was compatible with Article 7 of the WTD.

The ECJ issued guidance regarding "carry over periods" that:

  • A carry over period must be significantly longer than the reference period for the relevant holiday year. In the ECJ case of Schultz-Hoff it was ruled that a carry-over period of 6 months was not incompatible with the WTD.
  • A worker must where necessary be allowed pre-determined, possibly long-term and staggered rest periods.
  • Employers should not face having a worker accumulating lengthy periods of absence.

The ECJ stressed that an entitlement to paid holiday is a very important principle of EU law without the possiblity of derogations (exceptions), and that the implication of Schultz-Hoff is that a worker's entitlement to paid holiday may not be subverted by the employer imposing such conditions that a worker finds difficult to comply with (contrary to the EAT in Fraser v St George's NHST where a sick employee was nevertheless expected to give notice under Regulation 15 so as to remain entitled to a holiday).

Transcript of the judgement:-   KHS AG v Schulte ECJ Case C-214/10
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Some recent employment cases:-
2011
The emasculation of the employment tribunal system is the next stage on the road to a fundamental undermining of workers' rights and protections in Britain
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In order to claim holiday pay under Reg 16 (1) of the Working Time Regulations an employee must have already have stated an intention to take it. - Fraser v Southwest London St George’s Mental Health Trust [2011] UKEAT 0456_10_0311
Even where lists of issues have been agreed between the parties they should be scrutinised by employment judges. - Price v Surrey County Council & Anor [2011] UKEAT 0450_10_2710
Claimants with Before the Event Insurance may choose their own solicitor - Brown-Quinn & Anor v Equity Syndicate Managment LTD & Anor [2011] EWHC 2661
The High Court issues guidance as to when contractual provisions are valid - Hussain v Surrey and Sussex Healthcare NHS Trust [2011] EWHC 1670 (QB)
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