Employment

Pereda v Madrid Movilidad SA Case C-277/08 ECJ (10 September 2009)

Thu, 15 Oct 2009 21:55:06 GMT

The applicant in this case works for the City of Madrid as a specialist removing illegally parked cars. He had scheduled annual leave. Before this was due to start he was injured in an accident at work. His sick leave then overlapped with his annual leave dates, meaning that he would be off sick and unable to enjoy his holiday. He requested to change his holiday dates, but this request was refused without reason being given.

The applicant challenged that decision in the regional Social Security and Employment Court. The Court used the preliminary reference procedure to refer the question to the European Court of Justice. At issue was a worker’s entitlement to at least four weeks of annual leave under Article 7 of the Working Time Directive (2003/88) – a provision from which no derogation is allowed.

Although the tribunal had referred the specific question of entitlement to sick leave following an accident at work which occurred before the start of the holiday, the ECJ addressed the much wider question of entitlement to sick leave coinciding with previously scheduled annual leave.

The ECJ noted that the entitlement to annual leave is “a particularly important principle of Community social law”. It followed a recent decision of Schultz Hoff v Deutsche Rentenver Sicherung Bund in which it was held that “It is common ground that the purpose of the entitlement to paid annual leave is to enable the worker to rest and to enjoy a period of relaxation and leisure. The purpose of the entitlement to sick leave is different. It is given to the worker so that he can recover from being ill.”

The question of carrying over annual leave into a following year was discussed. Whilst the Directive allows for four weeks of annual leave in a year, there is nothing to prevent this from being lost at the end of the year provided the employee has had the opportunity to exercise that right. This question was addressed in Schultz-Hoff, where it was held that where the worker has not been able to exercise this right due to sickness, then national legislation cannot preclude the entitlement to annual leave being carried over into a subsequent year.

The ECJ followed this approach and applied to the circumstances in the present case, holding that where a worker is sick during the annual leave period, then the worker may request a new period of annual leave. Where it is not possible to accommodate this in the current year, then it can be carried forward beyond the current year.

Whilst the original question referenced to the ECJ concerned absence arising from an accident at work, the decision covers any sickness before or during the holiday, apparently howsoever caused – a much wider question than that originally asked.

Although it clearly seeks to ensure that workers are well rested, and so presumably to work more effectively and more safely during the year, it raises difficult questions, particularly from an employer’s perspective. Employers will now have to reschedule holiday time for their workers’ holiday sicknesses (which may be difficult to assess or monitor) or where workers’ have had a holiday accident. Where the accident has been caused by a third party, it is possible that there would be a rise in actions to recover refundable sick pay – possibly now with an international dimension. The waters have also been muddied for employees who may now, in certain circumstances, find it difficult to claim for loss of enjoyment of holiday as part of their solatium claim in personal injury actions.

It is likely that this will lead to some interesting litigation in future.

Palacios de la Villa v Cortefiel Servicios SA [2007] EUECJ C-411/05 (16 October 2007)

Tue, 16 Oct 2007 00:00:00 GMT

Retirement and Age Discrimination: In Palacios v Cortefiel Services SA, the ECJ held that the EU Equal Treatment Framework Directive does not prohibit member states from introducing mandatory retirement ages.

Palacios de la Villa v Cortefiel Servicios SA [2007] EUECJ C-411/05 (16 October 2007)

Tue, 16 Oct 2007 00:00:00 GMT

Retirement Age: In the Spanish Case of Palarios v Cortefiel Servicios SA, the Advocate General held that in considering whether a national law allowing for a compulsory retirement age was inconsistent with the EU Equal Treatment Framework Directive 2000, that the EU Directive does not apply to state laws setting retirement ages and, if it did, such a national provision was justified.

ASLEF v UK [2007] IRLR 361

Tue, 27 Feb 2007 00:00:00 GMT

Unions and the BNP: In ASLEF v UK, the European Court of Human Rights upheld the right of unions to exclude BNP members from their membership.

Cadman v Health and Safety Executive [2006] ICR 1623

Tue, 03 Oct 2006 00:00:00 GMT

Equal Pay. Cadman v Health and Safety Executive, ECJ: It is not necessary for an employer to objectively justify pay disparities arising from employees' length of service. Higher pay for longer service can be justified, because of a presumption that someone who has been doing a job for longer will generally as a result have greater relevant skill, and rewarding any experience which allows an employee to perform better is a legitimate pay policy objective. However, the presumption can be challenged if a woman could can show that it is doubtful that length of service is linked to greater skill in a particular job.

Mangold v Rudiger Helm

Tue, 22 Nov 2005 00:00:00 GMT

The European Court of Justice has given guidance on how courts should approach age discrimination before national legislation is in place. This case provides just a taster of how complicated age discrimination laws are going to be. A 56-year-old argued that German law implementing the Fixed Term Workers Directive contravened the Equal Treatment Framework Directive by allowing employers exemption from the objective justification rule when awarding fixed-term contracts to those aged over 52. The ECJ agreed, holding that: - national legislation allowing fixed-term contracts without justification for those aged over 52 offends the principle of ending age discrimination; and - it was irrelevant that the Equal Treatment Framework Directive was not due for implementation until December 2006 as the “over-52” exemption was introduced in 2002, after the framework directive was agreed. The German government was therefore obliged not to legislate in a way that encouraged age discrimination.