Does annual leave accrue during parental leave, when the contract of employment is suspended?
No, held the European Court of Justice in Tribunalul Botosani v Dicu.
The employee, Ms Dicu, was entitled to up to 35 days of annual leave, based upon the number of days she had worked that year. She took a period of maternity leave, then parental leave, and then annual leave. Her employer refused to grant her 5 days leave on the grounds that this had not accrued as parental leave was not a period of actual work.
The CJEU considered both the Working Time Directive and the Parental Leave Directive. 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. However, sick leave is usually not foreseeable, and beyond the control of the worker, and maternity leave protects a special situation and relationship.
Further, the Parental Leave Directive enabled Member States to define the status of the employment contract during periods of parental leave, and in Romania, the contract was suspended. Therefore, the CJEU held that parental leave was not a period of work for the purposes of the Working Time Directive.
Thanks to James English of Hempsons solicitors for preparing this case summary.