R v Secretary of State for Trade and Industry ex parte BECTU (High Court, 14 April 1999)
BECTU's challenge to the qualifying period for annual leave has become the first UK case on working time to be referred to the European Court of Justice.
BECTU is challenging the requirement that a worker must be continuously employed for 13 weeks with the same employer before acquiring a right to annual leave. The union represents many thousands of workers who are regularly engaged on short term contracts in the film, theatre, cinema and related sectors. They rarely, if ever, work for 13 weeks or more for the same employer and consequently never acquire the right to paid annual leave.
Article 7 of the Working Time Directive grants a right to paid annual leave to every worker. On BECTU's behalf, Thompsons is arguing that the qualifying period unlawfully excludes workers from that right.
The argument centres on the phrase in Article 7 which says that the right to paid annual leave is "in accordance with the conditions for, entitlement to, and granting of, such leave laid down by national legislation or practice". The Government maintains that this allows them to impose a qualifying period.
Both sides agreed this was an important point which needed to be decided by the European Court. The court has been asked to decide whether the phrase is to be interpreted as permitting a Government to introduce legislation under which a worker does not begin to accrue rights to the paid annual leave (or to derive any benefits consequent on that right) until he has completed a qualifying period of employment with the same employer. If a qualifying period is permitted, the ECJ must then decide what factors must be taken into account to decide whether a particular qualifying period is lawful, including whether it is proportionate. In particular, the court will be asked whether it is lawful for the Government to take into account the cost to employers of conferring the right to annual leave on all workers without a qualifying period. The Government has produced no figures which support this.
The court will bear in mind that once the qualifying period has been completed, the employment during the qualifying period is taken into account for the purpose of calculating the annual leave entitlement. There is a distinction between the approach taken by the UK Government and those EU countries which restrict the right to take annual leave at the start of employment, but not the right to accrue leave. In those countries, workers whose employment ends before the leave is taken will be entitled to a payment in lieu of untaken leave. In the UK, workers whose employment ends within 13 weeks are deprived of that right.
This important case will affect many thousands of workers on short term contracts. It also covers a crucial point of European law. The Working Time Directive is a health and safety measure. To what extent can governments impose restrictions on health and safety protection on the grounds of the potential cost to employers? The preamble to the directive precludes the "subordination of workers' safety, hygiene and health at work to purely economic considerations". The European Court is being asked to uphold that principle.