Although Brexit is fast approaching, top employment solicitors remain only too aware of the need to pay attention to decisions of the Court of Justice of the European Union (CJEU). Much of the UK’s employment law derives from EU legislation, and parental leave is just one of those Employment rights. Employment law solicitors in London will be keen to understand the CJEU decision in the recent case of Tribunalul Botoşani v Maria Dicu. The Romanian Court of Appeal made a reference to the CJEU to ask for clarification of the Parental Leave Directive and the Working Time Directive to determine whether annual leave continued to accrue during a period of parental leave.
A familiar provision for UK employment lawyers, parental leave is an unpaid right accorded to parents of children who are under the age of 18 and allows the parent to take up to 18 weeks, unpaid (although individual contractual arrangements may offer pay during parental leave). employees who have been employed continuously for 12 months by their employer are entitled to parental leave. As the best employment lawyers will be able to explain, there is a rudimentary process by which an employee should notify the employer of his or her intention to take parental leave, and the employer has the right to postpone the leave. Importantly, the parental leave provisions offer protection to an employee who takes parental leave – or who seeks to take parental leave.
The facts before the CJEU
In the case before the CJEU, the claimant, Maria Dicu, a judge at the regional court of Botoşani, had taken a period of maternity leave in 2014, immediately followed by a period of parental leave from 4th February to 16th September 2015. She then took 30 days’ annual leave from 17th September to 17th October 2015. She was entitled to 35 days’ annual leave under Romanian law, but when she asked to take the remaining 5 days over the end of year holiday period, she was refused. The regional court said that the period of parental leave did not count as a period of ‘actual work’ under the working time directive, and so annual leave did not accrue. Perhaps understandably, Ms Dicu brought a claim arguing for a declaration that parental leave should be counted as a period of actual work. He application was initially granted, and the employer appealed, and the Romanian Court of Appeal referred the question to the CJEU.
The decision of the CJEU
The CJEU recognised the fundamental importance of the right to 4 weeks’ paid leave, a core tenet of European social law. However, it also referred to the fact that the purpose of annual leave is to give the worker the opportunity for rest and leisure and presupposes that he or she has carried out work which means he or she needs to rest. It went on to consider those circumstances when the worker might not be at work, but nevertheless annual leave would continue to accrue. In the case of sick leave, for example, case law has established that the right to annual leave cannot be made conditional on a worker actually working. Sickness absence is not foreseeable by a worker and beyond their control. Following the case of Schultz-Hoff and Others annual leave should continue to accrue during sickness. Equally, as far as maternity leave is concerned, this is a special right designed to protect the employee’s biological condition during pregnancy, and thereafter, the ‘special relationship’ between mother and child immediately following the birth.
The CJEU thought that these situations could not be applied analogously to the situation of parental leave. There is no ‘illness’ necessitating time off, nor is there the same imperative that underpins maternity leave. The CJEU also noted that in transposing the parental leave directive into national law, the Romanian authorities had chosen to direct that although the individual taking parental leave remains a worker, his/her contract of Employment is suspended, including the reciprocal obligations regarding work and salary. As a result, the CJEU determined that it was acceptable for a period of parental leave not to be counted as ‘actual work’ for the purposes of determining entitlement to annual leave.
Parental leave – an under-used benefit?
Like many Employment benefits that look great on paper, it can be difficult in practice for employees to exercise their rights. Employment claim solicitors often find employers do not publicise the availability of such rights. Further, the fact that they are often unpaid can put people off taking time even when it is available. This is a criticism also levelled at time off paid at statutory minimums which make it uneconomical for parents to take the time they are entitled to. It will be interesting to see if plans to require employers of over 250 staff to publicise parental leave and pay policies online will come to fruition and the impact that this might have.
For any questions about parental leave and pay – whether you are an employee who wants to take time off, or an employer looking to ensure best practice in the workplace, OTS Solicitors can help. Our London employment solicitors offer intelligent, practical advice on all aspects of employment law. To discuss your situation, and your needs, in confidence, please contact is on 0203 959 9123.
Posted on: Wednesday, 10 October, 2018