Exclusion of parental leave from the holiday entitlement period

In 2018, an issue came to the fore that, to a greater or lesser extent, affects almost all residents and workers in the European Union. This refers to parental leave and its accrual period in the calculation of holidays. This is an issue that, in general, generates quite a lot of controversy and which we would like to resolve here.

The origin of the controversy

You have to go back to 2014 and Romania to find it. At that time, a female judge at the Botosani District Court in that country was able to take her full paid leave during that year and, subsequently, to take maternity leave from 1 October to 3 February of the following year. Subsequently, she also opted to take parental leave from 4 February to 16 September 2015, which led to her employment relationship being suspended during that period. Finally, from 17 September to 17 October, she took the 30 days' leave to which she was generally entitled.

According to Romanian law, the annual leave period is 35 days, so the judge asked her employer to grant her the missing 5 days during the Christmas period. The court for which she worked refused her request on the grounds that paid annual leave must be proportionate to the time actually worked during the current year.

This led to a series of appeals and appeals that took the case to the Court of Justice of the European Union, which ruled in favour of the court and against the claimant last October 2018. In particular, the plaintiff referred to article 7 of the Directive of the European Parliament and of the Council of 4 November 2003. Article 1 of that Directive specified that all Member States of the European Union were obliged to adopt such measures as they deem appropriate to ensure that workers employed in those Member States had at least four weeks' paid leave per year.

What does the judgment of the Court of Justice of the European Union say on this issue?

The judgment of the Court of Justice of the European Union to which we refer confirms that parental leave for children under 2 years of age is excluded from the accrual period in the calculation of paid leave. This is an issue that has gone beyond the borders of Romania and will now be mandatory throughout the EU.

It also specifies that, within the framework of Community law, such leave cannot in any way be equated to maternity or sick leave, which do count as effective working time for the purposes of calculating paid holidays.

The specific content of the ruling

Delving a little deeper into the matter, we find that this judgment states that, in "specific situations in which the worker is unable to carry out the tasks related to his professional position", mainly due to "maternity leave or adequately justified sick leave", EU member states cannot link the legitimate right to paid leave to "having actually worked".

However, "the same is not true of parental leave, since it is not comparable to maternity leave or sick leave, as there is no intrinsic physical or psychological reason for it".

Moreover, it considers that sick leave is "completely unforeseeable, alien and contrary to the employee's will". On the other hand, for this type of leave to be granted "it is necessary for the worker to request it in advance". In addition, maternity leave is intended to "protect the biological condition of the woman" both during pregnancy and after giving birth (breastfeeding).

For its part, the settled case law of the Court of Justice of the European Union itself emphasises that the taking of leave which has been guaranteed by EU law cannot prejudice the right to take leave guaranteed by the country in which the person concerned resides. However, this does not apply in this case.

The problem of the gender issue

This judgment, which we have referred to throughout this article, has given rise to a great deal of controversy. The reason lies in the fact that the ruling, as well as the previous opinion of the Advocate General, fails to address this issue from a gender perspective and ignores the fact that the vast majority of people who apply for this leave are women.

In other words, the Court of Justice of the European Union is accused of considering that, beyond the logical period of maternity or paternity leave, any other work leave taken is solely and exclusively voluntary and comparable to a period of rest, something which, as is evident, is little or not at all in line with reality.

This means, in turn, that this type of leave is in most cases requested to alleviate the problem of caring for children when both partners are working, and that taking such leave seriously hampers the professional development of women in particular. When they obtain it, they see that their income is reduced, that their career prospects are curtailed and that, in addition, it affects the days of holiday they can have per year.

Undoubtedly, this is a highly significant ruling on employment matters within the European Union, although it is foreseeable that, with the passage of time, it will become more nuanced in order to correct this lack of gender perspective. In any case, the Court of Justice of the European Union leaves the power to create legislation that better protects the rights of spouses to the countries and urges that these measures go beyond the established minimum limits.

In any case, we will always be left with the question of what would have happened if the claims had been brought on the basis of alleged sex discrimination. Surely, the court's decision would have been very different.