Annual leave – a right not a privilege

Covid-19 has raised particular problems with the taking of annual leave. Ciaran O’Neill looks at the rights of gardaí to take and carry forward such leave during these times

2020 has been a very extraordinary and difficult year, particularly for Frontline workers; without doubt, we could all do with a break. In the first few months of the Covid pandemic, whilst the country was getting to grips with Covid19, the ability for a Frontline worker to take Annual Leave was severely restricted. Indeed, even if he or she could take leave, there was nowhere to go, so the likelihood of applying for such leave was minimal. While we have a long term structure in place to deal with the outbreak from Phases 1 to 5 which is constantly under review, it is still extremely difficult for a member of An Garda Síochána to plan to take annual leave.

The annual leave year for a Garda runs from April 1 until March 31 the following year and at times, due to exigencies of the service and other reasons, it may not always be possible to avail of a member’s entitlement and so may be necessary to carry over annual leave to the following year. The majority of times this is done by the direction of the local Chief Superintendent but there are also in place a number of protections to ensure that a Garda can carry over leave subject to certain conditions. These conditions have the protections of collective agreements between Garda Management and the Staff Associations and also legislatively based as well as from the Courts.
The Westmanstown Working Time Agreement 2012 is a collective agreement between Garda Management and the Staff Associations and is in operation by internal directive. Section 8.4 of the Working Time Agreement states as follows:

Where by reason of maternity leave, illness or injury or where a member has applied for annual leave and, because of the exigencies of the service, the application is refused and the member cannot avail of his/her annual leave entitlement within the leave year, that member shall have the unused portion of his/her annual leave entitlement carried over in full into the next annual leave year. Other than the areas as outlined above, annual leave will not be cancelled save in exceptional circumstances.

Although members of An Garda Síochána are currently exempted under the Organisation of Working Time Act, in the case of Gardaí Harrington & Gaine, the High Court in 2016 was told that the Government had committed to remove the blanket exclusion of members of An Garda Síochána from the EU Directive on working hours. The Westmanstown Working Time Agreement is a collective Agreement that is in line with the rights of workers under the European Working Time Directive.

Section 8.4 of the Working Time Agreement is based on, and also is compliant with, a number of European Court of Justice findings, in particular the following cases.

In the case of HMRC v Stringer (2009), the European Court of Justice held that workers on sick leave continue to accrue annual leave and that if workers are not given the opportunity to take annual leave during this time, they should be permitted to carry it over to the next leave year.

In the case of Pereda v Madrid Movilidad SA (2009), the European Court of Justice found that the European Working Time Directive requires that where a worker is unable to take pre-arranged statutory annual leave in the relevant leave year due to sickness absence before the leave commences, the worker should have the option to designate a different period for the annual leave even if this requires carry over.

Finally, in the case of ANGED v. FASGA (2012), the European Court of Justice confirmed that where a worker becomes sick during statutory annual leave (as opposed to before statutory annual leave as was the case in Pereda), the worker should be entitled to take the annual leave at a later date – even if this requires carry over.

As it currently stands in order for a member of An Garda Síochána to be entitled to carry over annual leave they must have met one of the following criteria:
• Have applied for leave and have been refused it
• Has been on maternity leave during the leave year
• Were ill or injured during the leave year.

Note, all of the unused leave for that year may then be carried forward into the next year’s allocation of annual leave.

Ciaran O’Neill is a former President of the Garda Representative Association and is CEC Representative for the Special Detective Unit


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