11 Oct 2018

In Tribunalul Botoşani v Dicu, a referral was made to the European Court of Justice following a challenge brought against a Romanian national law. The Romanian Labour code provided that employment contracts would be 'suspended', and subsequently that holiday rights would not accrue, during parental leave.

Specifically, the ECJ was asked to clarify whether Article 7 of the Working Time Directive (WTD) – which entitles every worker to at least four weeks' annual leave – would be breached where the law of a member state allows employers to disregard time spent on parental leave when calculating holiday entitlement.

Facts

Ms Dicu, a judge at the Regional Court of Botosani, was entitled to 35 days' paid annual leave. Having been absent from work on maternity leave from late 2014 to early 2015, Ms Dicu opted to take parental leave from 4 February 2015 until 16 September 2015. She then extended her period of absence to 17 October by taking 30 days of annual leave. 

The Romanian Labour Code provides that, where a worker takes "parental leave to care for a child under the age of two", the employment contract is 'suspended'. The result of this 'suspension' is that absence on parental leave is not considered as a period of 'actual work' for the purpose of determining paid annual leave entitlement.

After returning to work, Ms Dicu asked to take her remaining 5 days' annual leave. Ms Dicu's employer refused on the basis that her holiday entitlement could only be calculated with reference to the period of time during which Ms Dicu performed 'actual work'; and that because she had been absent on parental leave she had not accrued the additional 5 days.

Ms Dicu brought proceedings before the Romanian Regional Courts, seeking confirmation that the period she took as parental leave be regarded as a period of actual work. Ms Dicu's application was granted, so her employer appealed to the Romanian Court of Appeal, at which the issue was referred to the ECJ for a determination.

ECJ Ruling

The ECJ held that the period of parental leave taken by Ms Dicu "cannot be treated as a period of actual work for the purpose of determining her entitlement to paid annual leave" under Article 7 of the Working Time Directive.

The position of the Romanian Labour Code is that, although employment is suspended during parental leave, sickness and maternity leave qualify as periods of actual work during which the employment relationship continues. The ECJ concluded that the Romanian Labour Code was perfectly entitled to draw this distinction. The judgment focused largely on the distinction between unforeseeable, unavoidable periods of leave and leave which is taken as the personal choice of the worker involved.

It was considered that opting to take parental leave is neither unavoidable nor unforeseeable. In fact, it is often indicative of a worker's own decision to take care of their child. In contrast, sickness absence has consistently been recognised in European case law (specifically Schultz-Hoff v Deutsche Rentenversicherung Bund) to be an absence from work which is beyond the control of the person concerned. Similarly, the ECJ recognised the necessity of maternity leave to protect the health of the mother both before and after childbirth, and to safeguard the relationship between mother and child.

The principles applied to sickness and maternity leave could not therefore be applied to parental leave. Where, as in this case, statute treats the employment contract as suspended during a period of parental leave, the ECJ found that the period could not be treated as a period of 'actual work' for the purpose of determining a worker's holiday entitlement.

Practical Implications

The decision in Tribunalul Botoşani v Dicu is not one which will change the statutory position in the UK – as it is, regulation 17 of the Maternity and Parental Leave etc. Regulations 1999 states that the employment contract will continue, albeit in an altered form, during parental leave.

Nevertheless, this case may be relevant in some situations such as where an employee is to be absent from work on a career break. UK law leaves it open to the parties to negotiate the terms of the absence – including whether or not holiday will accrue.