Employment.
[2022]JRC171
Royal Court
(Samedi)
16 August 2022
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Before :
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Sir Timothy Le Cocq,
Esq., Bailiff as single judge.
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Between
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Bartosz Banaszkiewicz
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Appellant
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And
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Mill Holdings (St Brelade)
Limited
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Trading as the Boat House
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Respondent
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Appellant in person.
Advocate V. S. Milner - Amicus
Curiae
judgment
the bailiff:
1.
This is an
appeal brought by Bartosz Banaszkiewicz ("the
Appellant") against Mill Holdings (St Brelade)
Limited trading as The Boat House ("the Respondent") from a
decision of the Jersey Employment and Discrimination Tribunal ("the
Tribunal") of the 27th July 2021 ("the
Judgment").
2.
At the
first presentation of this appeal before the Court, and indeed at directions
given subsequently, the Appellant who is Polish and does not have a full
command of the English language was unrepresented although had the assistance
of Mr Nick Le Cornu who I understand is an English
Solicitor. It follows that Mr Le Cornu was not able to make submissions on the
Appellant's behalf (although helpfully responded to factual questions
asked by the Court) and the Appellant was either unable or declined to make
submissions preferring instead to rely upon the written case and skeleton
arguments that he had provided to the Court. The Respondent was, on those occasions,
represented by officers but was not legally represented.
3.
It
appeared to the Court at those preliminary stages that, whilst the value of the
claim was very modest in financial terms, the issues raised were potentially
complex and far reaching and it was important that the Court be in a position
to be fully advised on the Law. As
a result Advocate Victoria Milner was appointed as Amicus Curiae and the
Court is indebted to her for her analysis of the Appellant's written
claim (which I was advised by Mr Le Cornu was settled
with the advice of English counsel) and her own submissions.
4.
At the
hearing before me, the Appellant rested on his written pleadings, the
Respondent took no part and indeed was not represented having secured the
agreement of the Court that it need not attend as it rested on the submissions
of the Amicus Curiae. Of course,
the Court heard from the Amicus Curiae.
5.
There are
two judgments of the Tribunal (leaving aside case management matters) in this
matter. The first ("the Claim
Judgment") was the Appellant's claim for unfair dismissal,
redundancy pay and damages for failure to give notice which claims were heard
by the Deputy Chairman on 25th March 2021, and dismissed for the
reasons set out in a judgment on 9th April 2021. The Appellant was subsequently given
leave to lodge further claims in respect of unpaid wages and holiday pay and it
is those claims that gave rise to the Judgment in respect of which this appeal
lies.
6.
The
Judgment dismissed all of the Appellant's claims and the Appellant
thereafter applied for leave to appeal.
He was granted leave by the Deputy Chairman on one ground which relates
to a claim for payment in lieu of statutory annual leave entitlement accrued during
his sick period.
7.
The
Tribunal found in both the Judgment and the Claim Judgment that:
(a) The Appellant was an employee of the Respondent
with continuity of employment from 26th June 2017 to 10th
June 2020;
(b) The Appellant was on sick leave from 20th
January to 26th October 2019 (the sick leave period) and
(c) The Appellant's employment terminated on
10th June 2020 by reason of his resignation.
8.
The only
ground on which leave to appeal has been granted, and the only ground
concerning the Court, is in the following terms:
"Ground 2
6. The
Judge erred in law in finding at paragraph [28] that the Appellant was not
entitled to carry over the statutory leave which accrued during the Sick Period
because he could have taken it after he returned to work, during the remaining
part of the leave year.
7. the
European Court of Justice decided in Max-Plank zur Forderung der Wissenschaft e. V Tetsuji Shimizu C-684/16, [2019] CMLR 1233 that an employee
who has been prevented by sickness from taking annual leave is entitled to
carry the leave over if the employer has failed to be proactive in ensuring
that the employee takes it and/or appreciates the consequences of not taking it
during the relevant leave year.
8. The
editors of Harvey on Industrial relations and Employment Law in the chapter on
the Working Time Regulations, point out at [187.02] that if leave not taken
where there was no physical impediment to doing so can be carried forward where
the employer failed to ensure it was taken, then a fortiori the same principle
must apply where leave has not been taken due to the employee's sickness.
9. The
Jersey Tribunal in Mrs V Mileti v Ogier Group
Services 53/2012 held that an employee is not entitled to carry over leave
which he could have taken on his return to work in the relevant year.
10. The
Judge erred in law in concluding at paragraph [30] that; "in both the
current claim Mileti there was a period between the
end of the sick leave and the termination of the employment where the employee
was fit enough to return to work" and by implication an opportunity arose
to take the accumulated leave.
11. Whilst
the Appellant worked between October 2019 and March 2020, the Respondent did
not recognise the Appellant had accumulated any leave entitlement during the
Sick Period. The Respondent
considered the Appellant's full-time contract (the "Written Fixed
Hours Contract") to have been terminated through frustration at the date
of his injury in January 2019, necessitating the imposition of a new
"Zero Hours Contract" upon return to work.
12. Further,
the Respondent made no effort to encourage the Appellant to take the leave
(assuming it acknowledged its existence) in the 2019 leave year."
9.
The core
issue therefore in this appeal is whether or not the Tribunal erred in Law in
failing to apply the principles set out in the case law mentioned above when
finding that the claimant was not entitled, following termination in 2020, to a
payment in respect of statutory annual leave accrued during the 2019 sick
period. It can be seen, therefore,
that the answer to this point could have significant consequences and be of
general application in employment matters going forward.
The findings in the Judgment
10. The relevant part of the Judgment dealing with
the claim in sick pay are to be found at paragraphs 24 et seq and is in the following terms:
"24. It was found in Mileti
that "On the facts it seems to us that the Applicant cannot say that she
was incapable of taking the leave to which she would potentially have been
entitled ..... the Applicant was fit to return to work in early January
2012, and no application to take accrued leave was made during the two months
during which she remained employed and did not attend work." Accordingly, no statutory entitlement to
holiday was found to be owed to the employee in Mileti.
25. The Claimant in the current claim
returned to work after his sick leave and there was, therefore, a period in
which he could have taken his outstanding 2019 annual leave, but he did not
seek to do so. Although by this
stage he was receiving 4% rolled up holiday pay as part of his remuneration
under the Zero Hours Contract, this would not have prevented him from
requesting paid annual leave days from earlier in the year. Alternatively, he could have asked that
the holiday be carried forward into the next year or even requested payment in
lieu of annual leave upon the change of his contractual terms.
26. Further, the Claimant could have
requested to take his annual leave during the Sick Period; this may have been
an attractive option as he was not being paid sick pay. While in some cases the employee may not
be in a position to make any such request during sick leave due to the nature
of their illness, the evidence in the current claim does not suggest this to be
the case. However, the Claimant did
not do any of these things prior to the end of 2019 or indeed prior to
termination of his employment in June 2020.
27. Mr Le Cornu
states in his skeleton argument that the Respondent prevented the Claimant from
accumulating or having the opportunity to take his annual leave in 2019. Mr Le Cornu
further asserts that had the Claimant asked to take his holiday in 2019 he
would have been told he was not entitled to it. However, I have been shown no evidence
that the Respondent prevented the Claimant from accumulating or taking his
holiday and Mr Le Cornu cannot know what the
Respondent would have said to the Claimant had he asked to take it. The fact is, the Claimant did not
ask. Had he done so it may have
been possible to resolve the matter at the time, or at least, had the
Respondent responded unreasonably, the Claimant may have had more evidence to
support his claim now."
Paragraph 8 the Judgment says
"The Claimant did not make
any effort to take his outstanding 2019 annual leave in the relevant leave year
or to carry it over, nor has he demonstrated that the Respondent refused to
permit him to do so. Accordingly,
the Claimant forfeited his entitlement to annual leave accrued during the Sick
Period and the Sick Period Claim fails."
11. In giving its decision on the application made
by the Appellant for leave to appeal against the Judgment with regard to the
matter of sick leave, the Tribunal, in its judgment of 24th
September 2021, said this:
"10. A finding of fact was made in the
Original Judgment that here was a period in the relevant leave year in which
the Claimant returned to work after his sick leave but "the Claimant did
not make any effort to take his outstanding 2019 annual leave in the relevant
year or to carry it over, nor has he demonstrated that the Respondent refused
to permit him to do so" [25 and 28].
However, based on the facts of the case, it does not appear that the
Respondent took any steps to facilitate the timely taking of the leave, nor did
it draw the Claimant's attention the risk of losing any untaken leave if
he did not take the leave before the end of the year.
11. It is noted that the Tribunal is not
bound by the judgment in Max-Planck, nor the commentary contained in
Harvey. However, both may be
considered and can be persuasive. A
question of law has arisen as to whether the principle set out in Max-Planck is
applicable in the current case. If it is applicable this could lead to the
decision in the Original Judgment in relation to the holiday pay claimed in
respect of the Claimant's statutory annual leave entitlement during the
Sick Period being set aside.
12. Accordingly, I grant leave to appeal the
Original Judgment in relation to the holiday pay claimed in respect of the
Claimant's statutory annual leave entitlement during the Sick Period on
this ground."
12. The essence of the appeal is stated in the
Appellant's skeleton argument of 8th December 2021 signed by
Mr Nick Le Cornu as representative but, as I have
mentioned, said by him as being settled with the advice of or by English
counsel. In essence the appeal
amounts to a claim that the Judgment erred in Law because it did not consider
the substantial jurisprudence surrounding the taking of statutory annual leave
as that jurisprudence has been developed by the European Court of Justice and
the Courts of England and Wales in the implementation of the Working Time
Directive 2003/88/EC. The Working
Time Regulations 1998 ("the Regulations") implement that directive
and provide for statutory entitlements to leave and the method of calculation
of payment with regard to statutory leave not taken prior to termination of
employment. Whilst it is not argued
that the Regulations are directly applicable in this jurisdiction it is argued
that there are sufficiently close similarities between the Jersey regime and
the regime provided for under the Regulations such as to mean that the Courts
of Jersey should take into account the case law that has developed around those
Regulations.
13. The case law on which the Appellant relies
relates to whether or not unused leave can be carried over and trigger an
obligation to make a payment in lieu on termination of employment. The case law that applies to that point
is the case law of the European Court of Justice and the English domestic
courts, the latter, of course, applying the Regulations which in effect apply,
as I have said, the Working Time Directive 2003/88/EC.
14. The Appellant's submissions rely to a
very substantial extent on the case of Max-Planck zur
Forderung der Wissenschaft
e. V Tetsuji Shimizu C-684/16, [2019] CMLR 1233
and Harvey v Industrial Relations and Employment Law at paragraph 187.02 made
the following statement with regard to the Max-Planck case:
"In this case the court
held that leave not taken during a leave year is carried forward to the
following year unless the employer can show that it took reasonable steps to
facilitate the timely taking of the leave, and drew to the worker's
attention the risk of losing any untaken leave if he or she did not take
the leave before the end of the particular leave year. If leave not taken is carried forward
when there was no physical impediment, but the employer failed to ensure that
there was an opportunity to take the leave and that the worker realised the
consequences of not taking it, it would be hard to argue that leave not taken
because of the impediment of being on sick leave does not also carry
forward. But there is one
difference, in the eyes of the ECJ; a
worker being sick is not the employer's fault, and therefore leave
not taken because of sickness should only carry forward for a limited period
whereas if it is the employer's fault, because of a refusal to permit the
taking of leave, or a refusal to pay for it, or even, after Max-Planck, a
failure to alert the worker to the pending expiry of rights, there appears to
be no limit to the number of times the untaken leave is carried forward."
[emphasis added]
15. Harvey also makes reference to the case of Plumb
v Duncan Print Group Limited [2015] IRLR 711 in the following terms:
"The EAT (Lewis J) concluded,
following a thorough analysis of Schutlz-Hoff,
Pereda and Larner, that not only was a sick
employee who was prevented from taking leave in a particular leave year, either
by denial of the opportunity by the employer or the effects of incapacity, able
to carry forward the accrued but untaken leave; an employee not so prevented
has a choice either to take the leave during the leave year in which it arises,
or not to do so. If the choice is the
latter, the untaken leave may be carried forward. This conclusion was consistent both with
the ECJ's jurisprudence and the decision in Larner,
and with the different purposes underlying sick leave and annual leave."
16. It is argued, however, that the provisions of
the Employment (Jersey) Law 2003 ("the 2003 Law") dealing
with annual leave (specifically Articles 11, 13 and 14) were based upon the
Regulations themselves implementing, as I have said, Directive 2003/88/EC. It is clear that Article 11 of the 2003
Law deals with entitlement to annual leave, Article 13 deals with payment in
respect of periods of leave and Article 14 deals with compensation relating to
entitlement to leave. There is a
distinction, as I have indicated, between these Jersey statutory provisions and
the provisions of the Regulations.
There is a difference in description of the individual who has the
benefit of the provisions (an "employee" under the 2003 Law and a
"worker" under the Regulations); differences in the periods (two
weeks in Jersey and four weeks under the Regulations) but there are more
significant differences between the two statutory regimes. For example, under the Regulations
(Regulations 13(9)) leave to which a worker is entitled may be taken in
instalments, but it may only be taken in the leave year in respect of which it
is due, and it may not be replaced by a payment in lieu except where a
worker's employment is terminated.
That is not so in Jersey as it is possible to have rolled up pay.
17. It is argued that the Tribunal has in the past
accepted the influence of the Regulations and developments in English
jurisprudence. In particular the
Appellant cites Mileti v Ogier Group
Services Limited [2012] TRE 53 where, at paragraph 33 the Tribunal said:
"Having considered the matter
carefully we find no reason to divert from
the general principles applied by the Court of Appeal in England
when deciding cases under
Regulation 13 when we interpret Article 11(1)(a) of the Law, which is in
similar terms. That does not mean
that the Island of Jersey must necessarily follow the developments in the
European Courts slavishly. It seems
to us that the relevant provision of the Jersey Law is similar in its
construction to the English provision in its basic effect. Whether an employee is unable to take
paid leave because of their serious
health or because of a defiant refusal on the part of their employer, the
reality is that the employee has not had the opportunity to take paid
leave."
18. It is argued that the Tribunal should have
taken into account the developments in European and English domestic
jurisprudence and reflected, in particular, in the case of Max-Planck.
19. In essence the Appellant argues that that,
under European Law and English Law workers must have the opportunity to
exercise the right to annual leave before the right to paid leave can be
lost. At paragraph 10 of the leave
to appeal judgment it was said:
"The Appellant draws support
from the acknowledgment and finding by fact by the Tribunal in the Leave to
Appeal Judgment (para 10), that: ".... Based on the facts of the
case, it does not appear that the Respondent took any steps to facilitate the
timely taking of the leave, nor did it draw the Claimant's attention the
risk of losing any untaken leave if he did not take the leave before the end of
the leave year"."
20. In conclusion, the Appellant argues that the
Respondent has not shown that it has exercised all due diligence in order to
enable the Appellant to take the paid annual leave to which he was entitled,
the annual leave was not lost and may be carried forward and that employment
being terminated there is an entitlement to payment in lieu of that annual
leave not taken. This Court should
follow the jurisprudence of the European Court of Justice and the Max-Planck
case.
Submissions of the Amicus Curiae
21. The Amicus' submissions begin
quite appropriately with the test on appeal from the decision of the
Tribunal.
22. Article 94(1) of the 2003 Law permits an
appeal, with leave either from the Tribunal or the Royal Court on a question of
Law only. In Voisin
v Brown [2007] JRC 047 at paragraph 18 the Court set out the test quoting
from Harvey on Industrial Relations and Employment Law in the
following terms:
"Accordingly, EAT will have
no power to interfere with the Tribunal's decision unless it can be
shown:
(a) that
the Tribunal misdirected itself in law or misunderstood the law or misapplied
the law: or
(b) that
there was no evidence to support particular conclusion or finding of facts; or
(c) that
the decision was either perverse in that it was one which no reasonable
tribunal, directing itself properly on the Law, could have reached, or
alternatively, which one was obviously wrong...."
23. It is not accepted that, as the Appellant
argues, EU Law and UK Law based on it is persuasive. There is no suggestion that Jersey is
bound by EU law in relation to employment law matters and indeed this appears
to have been confirmed in learned commentary. In the Jersey Law Review, February 2005,
in the Article Jersey's changing constitutional relationship with Europe,
Alistair Sutton states:
"In areas falling clearly
outside [protocol 3 to the UK Act of Accession], Jersey remains free (subject
to the provisions of Article 4) to take such measures as it deems necessary
- for example in areas such as immigration, social security, education,
health or employment - to protect its own domestic interests."
24. The reference in Mileti
by the Tribunal to European Law does not, so the amicus argues, make
judgments of the European Court of Justice persuasive in Jersey although
undoubtedly it is open to this Court to have regard to the case law in other
jurisdictions where it is appropriate to do so. In the Origin and Development of Jersey
Law Stephanie Nicolle QC stated:
"For the law of a foreign
jurisdiction to provide significant assistance, there must be some demonstrable
link with the law of Jersey."
25. Max-Planck is a
judgment of the Grand Chamber of the European Court of Justice arising out of a
matter before the Federal Labour Court in Germany. Although it undoubtedly speaks to the
European directive which has some similarity with the Jersey statutory
provisions as indicated above the amicus argues that no link is
established and it could not be said that Max-Planck is either part of
Jersey law or is of "significant assistance."
26. With regard to the relevance of the law of
England and Wales, Nicolle states:
"Where a Jersey statute is
based upon an English statute, the Jersey Courts will have close regard to
English cases decided under the English statute..."
27. In Voisin v
Brown, cited above, the Court at paragraph 11 said this:
"The [provisions of the
Employment (Jersey) Law 2003 on unfair dismissal are] in all material respects,
identical formed to the equivalent English legislation and accordingly
considerable guidance can be obtained from English decisions, although it must
always be remembered that this is a separate jurisdiction and, if this Court
were to conclude that wrong turning had been taken in England, it would be open
to it to differ."
28. Both English judgments and Harvey were cited in
Voisin v Brown although a number of
other authorities, specifically from this jurisdiction, were also cited before
that Court.
29. In Mileti, the
Tribunal specifically compared the position under Article 11(1)A of the 2003
Law with the Regulations in the following terms:
"30. How alike are the provisions in the Law and those
contained within the Regulations?
There is no doubt that there are both significant similarities and
differences between Article 11(1)(a) of the Law and Regulation 13 of the
Regulations. In terms of
differences, the statutory entitlement to holiday is much longer under the
Regulations and public holidays are dealt with quite differently under
Regulation 13A; there is an entitlement to additional leave but not to bank
holidays per se. The Regulations
quite clearly state that an employee cannot be paid in lieu of statutory
holidays other than on termination - the position in Jersey is different
where some employers do pay "rolled up"
holiday pay as part of the remuneration structure. Perhaps confusingly in light of the case
law dealt with below, the Regulations specify that paid leave must be taken in
the leave year in which it accrues.
There is no such provision in the Jersey Law.
31. In
terms of English case law, the issue of holiday entitlement in cases of long
term sick leave is a vexed one. The
cases are, as would be expected, heavily influenced by European Law and we must
bear in mind that the provisions in the Law are not identical by any means to
the provisions in the Regulations. The
Respondent took us to the English Employment Appeal Tribunal decision of Fraser
v Southwest London St George's Mental Health Trust UKEAT/0456/10/DA
which, Dr Moran said, supports the argument that a distinction should be made
between cases of paid and unpaid sick leave. The employee in that case claimed a
payment in lieu of two year's statutory holiday entitlement and she was
not successful. The Applicant's
view was that this case had been overtaken by more recent decisions in
England. However the Respondent
drew to our attention the point mentioned at paragraph 19 of the report that,
despite the employee having been unfit to work for a very long time, no claim
was made for holiday pay in respect of part of that period of sick leave
"no doubt because the claimant was paid throughout that year (either by
way or ordinary pay or sick pay)".
We note in passing that the Applicant in that case had also been fit to
work prior to her termination but did not return to work as no work could be
found for her.
32. The
Applicant referred us instead to the Court of Appeal case of NHS v Larner [2012] EWCA Civ 1034. On reading this case it is apparent that
it was the intention of the Court to give authoritative guidance on this very
issue. The Claimant in that case had
been on sick leave for a year. She
had not requested holiday during that time as she was too unwell and when
dismissed the following year sought payment in lieu of her statutory
entitlement. The Respondent argued
on appeal that the right had been extinguished on her dismissal as she had made
no request either to take the holiday or carry it forward, the rule must be
"use it or lose it".
The similarities with the arguments of the Respondent in the present
case are striking and self-evident.
Having conducted a careful review of the main English and European cases
Mummery LJ concluded in summary that the legal position was as follows in
England: (1) the claimant was entitled to paid annual leave; (2) she could not
take that leave in this case because she was sick; (3) she was entitled to
carry that leave forward whether she made a specific request or not and (4) as
her employment was terminated before she could take the holiday, she was
entitled to payment in lieu. The Claimant had ceased to be paid in January 2010
and so in fact had been paid or part paid for the bulk of the period in respect
of which the claim was made. Even
in England and Europe the right to carry forward leave does not continue ad
infinitum. On the facts the case
was different to the present case, the employee had never been fit to return to
work and had been too ill to take leave; she had never thought of
holidays. On the facts the Court of
Appeal found the situation to be different to that in the Fraser case above.
33. Is
the position in Jersey different?
The Respondent urges us to cut our own course and to part from the route
taken by the English court. On a
factual level, we do not feel that the Tribunal has to make a decisive finding
on this point in this case.
However, the Respondent encourages us to give an indication of our
view. Having considered the matter
carefully we find no reason to divert from the general principles applied by
the Court of Appeal in England when deciding cases under Regulation 13 when we
interpret Article 11(1)(a) of the Law, which is in similar terms. That does not mean that the Island of
Jersey must necessarily follow the developments in the European Courts
slavishly. It seems to us that the
relevant provision of the Jersey Law is similar in its construction to the
English provision in its basic effect.
Whether an employee is unable to take paid leave because of their
serious ill health or because of a defiant refusal on the part of their
employer, the reality is that the employee has not had the opportunity to take
paid leave. Paid holiday leave is not something that should become a substitute
for paid sick leave. We do think
however that there must be consideration in each case as to whether there was a
true incapacity to take leave, particularly in cases where the employee has
been able to contemplate a partial return to work. We feel it is an issue of fact whether
an employee in a particular case is unfit to a point where leave cannot be
taken. Ill health and incapacity to
undertake a particular job in a particular workplace may not necessarily render
an employee unfit to take leave, in our view."
30. It is a fundamental part of the
Appellant's case that the Tribunal erred in not moving on from Mileti and considering recent developments in European
law or indeed the Law of England and Wales.
31. The Amicus argues that it is not
apparent why it is submitted by the Appellant that a failure to follow
developments in English Law can constitute an error of Law by the
Tribunal. The decisions of the
English Employment Tribunal, let alone the decisions of the European Court, are
not automatically adopted into the Law of Jersey and, so it is argued, the
Tribunal must have primarily regard to settled judgments of the Court but is
not obliged to follow European Law or indeed the Law of England and Wales. The English Law follows European Law
because, prior to Brexit, it was required to do so. That is not and has never been the case
in Jersey.
32. The Amicus argues that whilst the
Appellant understandably wished to point between the similarities between the
2003 Law and, for example, the Regulations or the European statutory
equivalent, there are, in addition to the differences noted above, significant
other differences which, so it is argued, are material. In the Amicus Curiae's skeleton
argument these are listed as:
"36. ....
"i. The UK Regulations apply to all
workers, while the Employment Law applies only to employees. See Regulation 13(1) and Article 11(1)
of the Employment Law (Appellant's Authorities Tabs 6 and 7).
ii. Regulation 15 of the Regulations
contains provisions as to how a worker is to give notice of a wish to take
annual leave and how an employer or organisation may respond (Appellant's
Authorities Tab 4. P20 and pp25-28; Amicus' Bundle Tab 3, p 3) -
there is no such provision in the Employment Law.
iii. Regulation 30(2)(a) of the Regulations requires a
worker to present a complaint to the tribunal of a failure by the employer to
comply with Regulation 13 within 3 months (Appellant's Authorities tab 4,
p22; Amicus' Bundle Tab 3, p4).
There is no such provision in the Employment Law."
33. The Amicus quotes articles 11, 13 and 14
of the 2003 Law which as far as it is relevant is as follows:-
"11
Entitlement to annual leave
(1) .... An employee shall
be entitled in each leave year -
(a) to
a period of leave of 2 weeks or to such other period as may be specified in a
relevant agreement, whichever shall be the longer"
"13 Payment in respect of
periods of leave
(1) an
employee shall be entitled to be paid in respect of any period of leave to
which the employee is entitled under Article 11, at the rate of a week's
pay in respect of each week of leave, reduced pro rata for shorter periods of
leave."
"14 Compensation related to entitlement
to leave
(1) This
Article shall apply where -
(a) an
employee's employment is terminated during the course of his or her leave
year; and
(b) on
the date on which the termination takes effect (the "termination
date"), the proportion of the employee has taken of the leave to which he
or she is entitled in the leave year under Article 11(1) differs from the
proportion of the leave year which has expired.
(2) Where
the proportion of leave taken by the employee is less than the proportion of
the leave year which has expired, the employee's employer shall make the
employee a payment in lieu of leave in accordance with paragraph (3)."
34. In summary, the Amicus argues that the
2003 Law provides that:
"a. Every
employee is entitled to a period of paid annual leave (i.e. paid holiday), of
no less than 2 weeks per annum "in each leave year", calculated on
a pro rata basis for shorter periods.
(This is aside from paid leave in respect of bank and public holidays).
b. There
is no express statutory entitlement for an employee to carry forward, from one
leave year to the next, statutory annual leave not taken "in [the
applicable] leave year."
c. If
an employee's employment is terminated "during the course of his or
her leave year" and at that point an employee has accrued untaken annual
leave, the employee is entitled to a payment in lieu of that balance, but the
Employment Law does not expressly address different possibilities in terms of
why the statutory annual leave has not been taken (e.g. an employee having
refused to take annual leave or an employer having deliberately prevented
it)."
d. The
legislation is silent as to the position in respect of accrual of annual leave
when a person is on unpaid sick leave."
35. The only case on an employee's rights in
respect of statutory annual leave accrued during sickness absence where the
employee subsequently returns to work is Mileti. At paragraph 35 the Tribunal said:
"35. [What] was the statutory
entitlement to holiday? .... On the facts it seems to us the Applicant
cannot say that she was incapable of taking the leave to which she would
potentially have been entitled. She
has been prepared in the September to discuss a part-time return to work, she
mentioned in her submissions that she would have done something had she known
that her holiday entitlement would be lost and even said that she might have
taken the holiday. Of course the
Applicant was fit to return to work in early January 2012, and no application
to take accrued leave was made during the two months during which she remained
employed and did not attend work.
The point about accrued holidays was not raised until the financial
package became clear and the Applicant noted that part of what she thought was
her entitlement was not going to be paid.
That is very different to the facts before the Court of Appeal in [Larner] (see above) where the Applicant gave evidence that
she was so unwell that taking holiday was not something that she would or could
have contemplated. We are not
persuaded as a matter of fact that the Applicant did not have the opportunity
to take her statutory entitlement to leave." (Appellant's
Authorities Tab 5, para 35.)"
36. There was no finding of fact either in the
Claim Judgment or the judgment as to what steps the Respondent did or did not
take in terms of facilitating the timely taking by the Appellant of leave. It is not clear what the evidence was on
this particular point. Be that as
it may, however, the question for this Court is whether under the 2003 Law an
employer is required to show that it exercised all due diligence in order to
enable an employee actually to take paid leave to which he is entitled as
argued by the Appellant. The
evidence in the present case was that after a period of sick leave there was a
period of time during which the Appellant could have taken accrued annual leave
but did not do so as set out in paragraph 27 of the Judgment.
Conclusion
37. The essence of the Appellant's claim is
that the Tribunal, notwithstanding Mileti,
should have developed the Law of Jersey to take into account developments under
European Law and the Law of England Wales which, prior to Brexit, derive from
European law. The test this Court
must consider, on appeal, is whether the Tribunal misdirected itself in Law or
misunderstood the law or misapplied the Law.
38. It seems to me that it is impossible to
conclude that the Tribunal did so misunderstand or misapply the Law. What it did not do was to avail itself
at an opportunity to develop the Law and it might be that had it chosen to do
so, which it did not, the matter might be before this Court to consider whether
that development was appropriate or justifiable in these circumstances.
39. It would, perhaps, be open to this Court to
develop the law of Jersey in the sense of further identifying what the law of
Jersey is in the light of greater clarification provided by judgments or
sources of law which are of a highly persuasive nature.
40. The fact is, however, that the law of the
European Court of Justice in employment matters is not such a source of law, and
I do not feel able to accept any invitation to develop the Law of Jersey in
that way. That is a matter for the
legislature having considered all matters to clarify or develop the Law should
it see fit to do so.
41. I cannot say that the Judgment erred in
identifying Jersey law as it currently stands and that is the basis on which I
must consider the current appeal.
In the light of that conclusion, therefore, I must dismiss the appeal.
Authorities
Working Time Directive 2003/88/EC.
The Working Time Regulations 1998.
Max-Planck zur
Forderung der Wissenschaft
e. V Tetsuji Shimizu C-684/16 [2019] CMLR 1233.
Harvey v Industrial Relations and
Employment Law.
Plumb v
Duncan Print Group Limited [2015] IRLR 711.
Employment (Jersey) Law 2003.
Mileti v Ogier Group Services Limited [2012] TRE 53.
Voisin v Brown [2007] JRC 047.
Industrial Relations and Employment
Law.
Origin and Development of Jersey Law.
