Annual leave may not accrue during parental leave, when the contract of employment is suspended held the European Court of Justice (ECJ) in Tribunalul Botosani v Dicu.
Ms. Dicu, a judge in 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, she 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 ECJ considered the Working Time and Parental leave Directives. For some purposes, the right to annual leave presupposes that the worker was actually at work, but for others (such as sick leave or maternity leave) it doesn’t.
Peter Stanway, our BackupHR™ legal expert comments:
The Parental Leave Directive enables Member States to define the status of the employment contract during periods of parental leave, and in Romania, the contract was 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. Therefore, the ECJ held that parental leave was not a period of work for the purposes of the Working Time Directive. 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.
In fact, it is usually a worker’s own decision to take care of their 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 holiday entitlement.
Application to the UK
The decision is not one which will change the statutory position in the UK; as the Maternity and Parental Leave Regulations 1999 states that the employment contract will continue, albeit in an altered form, during parental leave. This case may however be relevant in some situations, such as where an employee is to be absent from work on a career break or sabbatical. UK law leaves it open to the parties to negotiate the terms of the absence – including whether or not holiday will accrue.
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. There is a simple 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.
Parental leave is an under-used benefit because it can be difficult in practice for employees to exercise their rights. It is usually unpaid so can put people off taking time, even when it is available.
This is a good decision for employers and although we do not really have many clients with regular parental leave requests it is encouraging that the ECJ can come up with a common sense decision.
- Ensure that you have a well-worded policy on parental leave that is publicised and understood.
- Do not confuse it with Shared Parental Leave or Paternity Leave.
- Deal with any requests sensitively, properly and pragmatically.
- Get advice if you get requests for leave that do not fit the legal criteria.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for a free initial chat on 01480 677980.