The Court of Justice of the European Union (CJEU) held in Tribunalul Botoşani and anor v Dicu that member states are not prevented from legislating that holiday does not accrued during parental leave despite a worker retaining their worker status.
This is a case under Romanian law. Ms Dicu went on maternity leave for four months in October 2014, after which she took a period of parental leave. During the parental leave period, her employment contract was deemed to be suspended. She was entitled to 35 days’ annual leave per year. She had taken 30 days’ annual leave before she returned to work. She then asked to be granted the five remaining days of paid annual leave for 2015 when she returned.
Her employer refused on the basis that the length of paid annual leave was calculated on the time she had actually worked during that year. As she had been on parental leave in 2015 (which did not constitute actual work), she was not entitled to the additional five days.
She brought a claim seeking a declaration that the period she took as parental leave should be treated as a period of actual work. The Regional Court agreed, but her employer appealed the decision. The Court of Appeal asked the CJEU to decide whether Romanian law was able to treat a period of parental leave as not amounting a period of actual work.
Article 7(1) of the Working Time Directive requires member states to ensure that every worker is entitled to paid annual leave of at least four weeks “in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice”.
Decision of CJEU
Although EU law states that every worker is entitled to paid annual leave of at least four weeks, the CJEU noted that the purpose of that right (to enable a worker to rest and relax) was based on the premise that the worker had actually worked during the reference period.
The Court noted, however, that there were exceptions to that rule. For instance, if the worker was on sick leave or maternity leave. In those circumstances, member states could not make the right to paid annual leave subject to a condition that the worker had actually worked.
This was firstly because incapacity for work owing to sickness was, as a rule, not foreseeable; and secondly because maternity leave was to protect women during and after pregnancy. Parental leave did not fall into one of those exceptions.
Although a worker on parental leave retained the status of a worker under EU law, member states had the right, according to the framework agreement on parental leave, to suspend their contracts under national law.
It followed that the period of parental leave taken by the worker during the reference period could not be treated as a period of actual work for the purpose of determining their entitlement to paid annual leave under Article 7.
Gerard Airey of Thompsons Solicitors commented “The Preliminary Ruling in this case is quite surprising. I would have expected the Court to treat parental leave in the same manner as maternity leave and sickness absence, given that the Court accepted someone on parental leave is a worker and other EU case law has held that a worker’s entitlement to holidays accrues without being obliged to attend work.
However, unlike UK law which preserves the contract during parental leave, Romanian law specifically provides that the employment contract is suspended “on the initiative of the worker [who takes] parental leave to care for a child under the age of 2”.
The case therefore has no bearing on UK law and employers cannot rely on this case to deny workers the right to accrue entitlement to the 5.6 weeks statutory holidays under the Working Time Regulations during a period of unpaid parental leave”.