Annual Leave in UK Law

As Mr Linden observed, common sense also points to the conclusion that the Directive had to leave it to Member States to decide how to calculate the amount of remuneration payable in respect of the absolute entitlement to four weeks paid annual leave. The pay systems of different employers across the European Union differ; a workable common definition would, therefore, be difficult to achieve.

In my view, there is nothing in regulation 16 on which the Marleasing principle of construction can bite, especially where, as I have concluded, the content and framework of the Regulations, when read with the Act, show that their draftsman clearly intended to apply the Act's well established domestic definition of "a week's pay" save in the immaterial respects for which he specifically provided in regulation 16(3) .

The first basic question for the national court is: what is the period of "working time" for which the worker must have worked before he becomes entitled to annual leave under Article 7? To what period of "working time" does the specified period of annual leave relate? This question is not answered by Article 7 itself or by any other provisions in the Directive. How then is it possible for a national court to decide which workers are entitled to annual leave?

In these appeals, however, the parallel between the statutory right to paid annual leave and a contractual right to holidays with pay is to my mind much clearer and closer. It is not less close because of the Working Time Directive's emphasis on health and safety at work. Similar thinking has for many years informed the approach of responsible employers in framing contractual terms of employment. Moreover in each case the remedy would be an order for payment of the liquidated sum due.

In my judgment subsection (4) does not bear upon the issue whether a contract falls within subsection ( 2) or (3). That must first be determined in accordance with the test plainly stated in the section and already identified. The reference to commission in subsection (4) does not require or permit all contracts in which commission is a part of the remuneration to be placed within subsection (3).

[35] On that reading of the WTD, those particular days during the employee's seven day working week on which the employee does not actually work are not generally reckonable towards annual leave. The point is perhaps best illustrated by the example, canvassed in argument, of the part time worker who may work three days per week - say Monday to Wednesday inclusive.

The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.