Before : |
Sir Timothy Le Cocq, Esq., Bailiff as single judge. |
Between |
Bartosz Banaszkiewicz |
Appellant |
And |
Mill Holdings (St Brelade) Limited |
|
|
Trading as the Boat House |
Respondent |
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.
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.
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.
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.