CJEU does not consider parental leave as actual work for the purpose of calculating annual leave
The CJEU has ruled on a question posed by a Romanian court, which raised the question of whether a national rule that does not consider the period of effective work, for the purpose of calculating the duration of annual leave, the period in which the worker took parental leave for a child under two years of age. In its reply, the Luxembourg court has established that Community law does not equate parental leave to actual working time, or to sick leave or maternity leave, for the purpose of calculating the duration of paid annual leave.
Therefore, this time will not be taken into account when calculating vacation time.
The judgment first recognizes that one of the basic principles of social law established by the European Union is the right of workers to at least four weeks of paid annual leave.
On this basis, it states that “in certain specific situations in which the worker is unable to carry out his duties, in particular because of duly justified sick leave or maternity leave, the Member States may not make entitlement to paid annual leave subject to the requirement of having actually worked”, so that in such cases entitlement to paid leave would arise despite the fact that the worker is not actually attending work . The same does not apply to parental leave, in the Court’s opinion.
The The CJEU does not understand that parental leave can be assimilated to this situation, described for sick leave or maternity leave. This is, according to the court itself, because of the fact that In principle, an incapacity to work due to illness is unforeseeable and beyond the employee’s control, unlike parental leave. In addition, points out that it also differs from maternity leave in that it is intended to protect the biological condition of the woman during and after pregnancy.The parental leave cannot be assimilated to parental leave either, because of the particular relationship between the mother and her child during the breastfeeding period.
The specific case
The CJEU thus decides a case in which a female judge at the Tribunalul Botoșani (Botoșani District Court, in Romania) took full paid annual leave during 2014 and then, from 1 October 2014 to 3 February 2015, a maternity leave.
She later took a parental leave from February 4, 2015 to September 16, 2015, a period during which her employment relationship was suspended.
Finally, she took 30 days of paid annual leave from September 17 to October 17, 2015.
Under Romanian law, which provides for an entitlement to paid annual leave of 35 days, the claimant requested the court to which she was posted to grant her the remaining five days of paid annual leave for 2015, which she wanted to take during the working days between the Christmas vacations.
The Tribunalul Botoșani (Botoșani District Court) denied this request on the grounds that, under Romanian law, the duration of paid annual leave is proportional to the time actually worked during the current year and that, from that point of view, the duration of the parental leave which she had taken during 2015 could not be considered as a period of actual work for the purposes of determining the entitlement to paid annual leave. What about you?
What do you think?
Should paternity leave time be considered working time for vacation calculation purposes?
Could it be discriminatory with respect to the case of maternity leave?
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