Commentary

(b) Taking leave and payment in lieu

Division CI Working Time
| Commentary

(b) Taking leave and payment in lieu

| Commentary

(b)     Taking leave and payment in lieu

(i)     Timing of leave and carrying forward untaken leave under the WTD and WTR

WTR SI 1998/1833 reg 13(9) provides that leave may be taken in instalments, but it may only be taken in the leave year in respect of which it is due and, very importantly, may not be replaced by a payment in lieu except where the worker's employment is terminated. This reflects the approach of the WTD, exemplified in the decision of the ECJ in Federatie Nederlandse Vakbeweging v Staat der Nederlanden: C-124/05, [2006] IRLR 561, holding as incompatible with art 7 of the WTD a provision permitting leave not taken in the leave year concerned to be carried forward to the following year, when it could either be taken or commuted for payment in lieu. The court accepted that carrying forward untaken leave might be inevitable, but balked at the idea that it might then be commuted to payment rather than taken as leave.

Unlike Dutch law, however, the WTR do not give workers rights to carry forward untaken leave (subject to limited exceptions for additional leave explained below), and in the absence of a contractual provision permitting carrying forward, basic leave not taken is simply lost (unless the reason that it is not taken within the leave year is that the worker was not permitted to take the leave by his or her employer, or was unable to take it because of

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