In a recent European Court of Justice, (ECJ) Judgement (Case C-486/08  Zentralbetriebsrat der Landeskrankenhäuser Tirols V Land Tirol) it was held that accrued paid leave not yet taken in a leave year cannot be reduced or paid at a reduced rate because the worker then reduces his or her working hours from full to part time. This applies only where the worker has been unable to take the accrued leave before going part-time e.g. return to work part time following maternity leave.

“……….. that the taking of annual leave in a period after the reference period has no connection to the hours worked by the worker during that later period. Consequently, a change, and in particular a reduction, of working hours when moving from full-time to part-time employment cannot reduce the right to annual leave that the worker has accumulated during the period of full‑time employment.

On the other hand, it is indeed appropriate to apply the principle of pro rata temporis, set out in Clause 4.2 of the framework agreement on part-time work, to the grant of annual leave for a period of employment on a part-time basis. For such a period, the reduction of annual leave by comparison to that granted for a period of full-time employment is justified on objective grounds. However, that principle cannot be applied ex post to a right to annual leave accumulated during a period of full-time work. “

Further amendments will be needed to the Working Time Regulations as they currently provide for payment of leave to be calculated by reference to a week’s pay at the time the leave is taken, not when it was accrued.