The EU debate – thoughts on holiday rights

Morrish SolicitorsEmployment, Site NewsLeave a Comment

There is a lot of fairly heated discussion on the “Brexit” debate.  The claims and counter-claims by each side have begun, I suggest, to border on the silly.  Hyperbole is the order of the day.
I want to look, in the next couple of weeks, at just a handful of what I think are concrete matters (in so far as law is ever so dependable) that relate to the legal effect of our participation in the EU.
First off: holidays.
My clients were always surprised when, early in my career (nearly 30 years back), I advised them that they were not automatically entitled to paid holidays.  Indeed, they were not entitled, unless their contract provided otherwise, to any holidays at all.  Not even bank/public holidays.  It was perfectly possible to agree to work 52 weeks a year, with no holiday; or to find that such holidays as one might take, were unpaid.
That held true till 1998 and the Working Time Regulations (WTR).  Under those Regulations, as subsequently amended, employees are now entitled to 5.6 weeks a year paid holiday.  Also rest breaks, and a limit (usually honoured in the breach) on working hours.
The WTR arose directly out of Europe’s health and safety based Working Time Directive.  I doubt many people now think it’s a bad thing, to have a legal entitlement to paid time off.  But UK governments have not all agreed.
So it’s worth bearing in mind that the UK government:
  • took 2 years longer than it ought, to implement the WTR
  • challenged the legality of the Directive in the ECJ
  • campaigned against it
  • took advantage of derogations from it (e.g. the individual opt-out for the maximum working week)
  • framed the WTR so that regular overtime and e.g. commission payments were all ignored in calculating holiday pay

Michael Ford QC, in his excellent advice to the TUC* on the implications of a Leave vote (and whether you agree with him or not, it’s an impressive piece of work), says this:  “In  the  event  of  Brexit,  substantial changes to or wholesale revocation of WTR is predictable.”  That can’t be far wrong, given the abovementioned approach of the UK to the WTR/Directive historically.

We can see more recent evidence of this in relation to the “Bear Scotland” series of cases on calculating holiday pay.  As soon as it became clear that a European approach to calculation was appropriate (so that e.g. overtime would be included in holiday pay), the government legislated almost overnight a) to put a 2-year “long stop” on claims for historical back pay and b) to prevent aggregation of claims where there existed any 3-month or longer gap between underpayments.
And to get an idea how politicians are already thinking, you can do worse than looking here: – a link to the Private Members’ Bill supported by C R Coope, MP for Christchurch.  There is already a move to water down our holiday rights – it’s not realistic to think that will change on a Brexit event.
None of the above will be much controversial to employment lawyers.  It is a shame that the debate (on both sides of the fence) hasn’t been put in more factual (and less frenetic) terms.  I’d welcome views from readers, especially if expressed in reasonable terms.
Paul Scholey – Senior Partner

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