The European Commission has issued updated guidance to member states on the Working Time Directive (WTD). Much of the content simply rehearses the law already in force in Scotland, England and Wales, but it highlights several areas of inconsistent transposition into domestic law, and issues which have been considered by the European Court of Justice (ECJ).
The uncertainty around the directive is highlighted by the recent Employment Appeal Tribunal decision in Fulton v Bear Scotland Ltd (UKEATS/0010/16). The employees’ claims were for a series of failures by the company to pay their statutory holiday entitlement which they had not taken or been paid in lieu of. Following an earlier decision of the EAT, the EAT held that any gap of more than three months between underpayment or non-payment of holiday pay meant that any consideration of earlier periods was time-barred.