Tribunalul Botoşani and Ministerul Justiţiei v Dicu C-12/17, ECJ judgment

November 2, 2018, By

This European Court of Justice judgment provides that the situation of a worker parental leave is different to that of a worker on sick leave (in the sense that it is foreseeable and a worker on parental leave is not subject to physical or psychological constraints caused by an illness) and also different from maternity leave (in that it is not to protect the mother’s biological condition or special relationship with the child during pregnancy and after childbirth) and therefore while under Article 7 of the Working Time Directive 2003/88/EC (WTD), annual leave accrues during sick leave and maternity leave, the same does not apply to periods of parental leave.  Therefore, according to the ECJ, Article 7 does not preclude a provision of national law which provides that paid annual holiday does not accrue during parental leave.

The current UK position is that entitlement to holiday under the Working Time Regulations 1998 (WTR 1998), only requires the individual to be an eligible ‘worker’ at the relevant time.  Periods spent on parental leave are not excluded and therefore statutory holiday will accrue during such periods.  This contrasts with the position in Romania, as illustrated in Ms Dicu’s case, where Romanian law provides for employment contracts to be suspended during parental leave and therefore, according to this case, it is lawful for holiday not to accrue during that period.  Therefore, it appears that, in the UK, the WTR 1998 go further than is required by the WTD.  Following this judgment however, it appears that the UK government could lawfully amend the WTR 1998 to provide for holiday not to accrue during parental leave but, until that time (if ever) the position in the UK in respect of statutory holiday therefore remains the same.

As for the contractual holiday entitlement position, the Maternity and Parental Leave etc Regulations 1999 provide that only certain specified contractual terms continue during parental leave (e.g. notice of termination) and they do not include the right to holiday. Accordingly, contractual holiday entitlement only accrues during parental leave if the contract specifically provides for that. This judgment does not change this position however it makes it less likely that employers will provide that contractual right in the future.