The European Court of Justice (ECJ) has clarified an important point of EU law in Merino Gómez v Continental Industrias Del Caucho Sa (2004, IRLR 407 and LELR 89 for a summary). It has ruled that a pregnant worker does not have to take her annual leave during her maternity leave period, even if it coincides with a general shutdown of the entire factory.
What holiday did Ms Merino Gomez want to take?
Ms Merino Gómez had been employed as a factory worker by Continental Industrias since 1994. She took maternity leave from 5 May to 24 August 2001, after which she applied to take annual leave from 25 August to 21 September 2001, or alternatively from 1 September to 27 September 2001.
What was the relevant legislation?
The collective agreement for the chemicals sector that regulated relations between Continental Industrias and its staff says that holiday entitlement is 30 days, with the requirement that a continuous period of at least 15 days be taken between June and September.
Under a collective agreement reached in 2001 between Continental and its employees, two general periods were established when all staff could take leave. The first was from 16 July to 12 August 2001 and the second from 6 August to 2 September 2001. As these periods coincided with her maternity leave, Ms Merino Gómez applied to take her annual leave after that.
That agreement also provided, by way of exception, that six workers could take holiday in September. Priority for the exceptional leave period was given to those who had been unable to choose their holiday period the previous year. As Ms Merino Gómez had chosen her holiday in 2000, she was not entitled to take her annual leave in September 2001 during the exceptional period.
Continental therefore refused her request on the grounds that it breached the collective agreement and Ms Merino Gómez brought proceedings in her national court.
What questions were referred to the ECJ?
The Spanish court asked two questions:
- Where collective agreements fix annual leave periods for the entire workforce which coincide with a worker's maternity leave, is that worker entitled to take her annual leave at a different time under the Working Time Directive (WTD), the Pregnant Workers Directive (PWD) and the Equal Treatment Directive (ETW)?
- If the answer is yes, is her entitlement to four weeks' annual leave as per the WTD or the 30 calendar days stipulated by Spanish national legislation?
What did the ECJ decide?
The ECJ said that:
1. EU law means that a worker must be able to take the paid annual leave to which she is entitled under the WTD at a time other than her maternity leave. This includes a case where the dates of annual holiday fixed in advance by a collective agreement coincide with the worker's maternity leave.
This is because the purpose of the WTD to paid annual leave is different from maternity leave. Where the dates of a worker's maternity leave coincide with those of an annual shutdown, the requirements of the WTD cannot be met.
On top of that, the PWD provides that rights connected with the employment contract of a worker must be ensured in a case of maternity leave. The determination of when paid annual leave is to be taken also falls within the scope of the ETD, which must be interpreted as meaning that a worker must be able to take her annual leave during a period other than her maternity leave period.
2. The answer to the second question must therefore be that where national law provides for a longer annual leave entitlement than the minimum laid down by the WTD, then her entitlement is to the longer period.