Insights

The AG of the ECJ has just opined that workers should be entitled to vacation leave during a period between unlawful dismissal and reinstatement, if so ordered by the Industrial Tribunal.

In view of the case CV v Iccrea Banca SpA Istituto Centrale del Credito Cooperativo (C-37/19), that was decided on the 29th of January, Advocate General Hogan has given an opinion that the Working Time Directive 2003/88/EC (the “Directive”) and the Charter of Fundamental Rights of the EU (the “Charter”) prevent national laws which deny workers, who are found by a national court to have been unlawfully dismissed and are then reinstated, the entitlement to holiday in respect of the period between dismissal and reinstatement.

Although the Advocate General accepted that it is generally a prerequisite of the right to annual leave under Article 7(1) of the Directive and Article 31(2) of the Charter that a worker has been working, he noted that this link has been broken by the ECJ in the case of sick leave and maternity leave. He concluded that unlawful dismissal is not fundamentally different to sick leave or maternity leave, since in each case a worker’s absence is unforeseeable and beyond their control. It would also be unfair for a worker, who is denied the ability to work because of their employer’s wrongful act, to suffer as a result.

If this opinion is accepted by the ECJ, such a clarified position will be welcome under EU law. However, this would mean that if an employer is ordered to reinstate an ex-employee (perhaps after many years due to lengthy court proceedings), an employee can claim payment for vacation leave over and above the payment for wages.