Employment Matters - Spring 2011

Author:Mr Séamus Given
Profession:Arthur Cox

Employment & Industrial Relations Group Newsletter

In this first edition of Employment Matters, the Arthur Cox Employment Law Group Newsletter, we look at a range of issues across our practice area and some recent and prospective developments in law.

Arthur Cox has Ireland's largest employment and industrial relations law practice, consistently top ranked in the area, with considerable experience in advising on a vast range of complex employment and industrial relations issues for a wide variety of clients at both national and global levels. The Employment Law practice group provides an extensive range of legal services to clients on all aspects of national and EU employment law and industrial relations. The group also provides a skilled mediation service.

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Irish Employment Rights Legislation Review: the winds of change?

2010 was the 20th anniversary of the enactment of the Industrial Relations Act 1990. The Report of the Special Group on Public Service Numbers and Expenditure Programmes (McCarthy Report) suggested radical changes to future structures and operations of the statutory employment relations dispute resolution bodies which would significantly reverse the purpose of the 1990 Act. The Labour Relations Commission has undertaken a specific and independent review of current employment rights provisions with a view to advising on appropriate changes to the current legislative framework and a consolidation of the principal processes and legal remedies.

We will keep you informed of developments and there will be detailed briefings as the outcome of the Review progresses.

Holiday pay and long term sick leave: Stringer et al

In March 2010, the European Commission initiated a consultation process with the European social partners about the Working Time Directive. The review process aims to establish whether, in light of changing work patterns across the EU, the Directive should be amended. One area that will be under the spotlight concerns the results of joined cases Schultz Hoff v Deutsche Rentenversicherungg Bund Case C-350/06 and Stringer v Her Majesty's Revenue and Customs Case C-520/06 (commonly referred to as Stringer).

Article 7 of the Working Time Directive (93/104/EC) provides that Member States must 'ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.' Payment in lieu of this minimum entitlement is prohibited except on termination of employment. In Ireland Art 7 is implemented by s 19 of the Organisation of Working Time Act 1997 (the Act of 1997). In Stringer, the European Court of Justice (ECJ) decided that the exercise of an employee's right to annual leave under national law cannot be made subject to a requirement to have worked during the relevant leave year. Under s 19(4) of the Act of 1997 employees who work more than eight months in a given year will be entitled to take two uninterrupted weeks of annual leave together, however this two week period includes any period during which the employee becomes ill.

When the case was referred back to the UK courts, the House of Lords in HM Revenue & Customs v Stringer and others [2009] IRLR 677 decided that, to give effect to the ECJ's decision, the UK's Working Time Regulations 1998 (WTR) must be interpreted as allowing employees on long-term sick leave to take (and be paid in respect of) their statutory holiday entitlement.

Following Stringer, the ECJ in Pereda v Madrid Movilidad SA (Case C-277/08) ruled that a worker who is on sick leave during a period of previously scheduled annual leave has the right, on his request and in order that he may actually use his annual...

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