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Working not a precondition to right to paid holiday, court rules

24 January 2012

Workers' right to paid holiday cannot be subject to a minimum period of actual work during the reference period used to calculate entitlement, the European Court of Justice has said.

Ruling in case C-282/10 Dominguez v CICOA, the court held that although EU member states were “free to lay down, in their domestic legislation, conditions for the exercise and implementation of the right to paid annual leave, they are not entitled to make the very existence of that right subject to any preconditions whatsoever”.

The Luxembourg judges added that there may be divergences as regards the conditions for exercising the right to paid annual leave but that the working time directive did not allow member states to “exclude the very existence of a right expressly granted to all workers”.

The fact that the directive did not make any distinction between employees off work on sick leave and those who have in fact worked in the course of the reference period meant that, for the former, the right to paid annual leave could not be made subject to a condition that the employee has actually worked during the so-called reference period – usually a year.

The applicant in the case, Maribel Dominguez, was injured in a car crash on the way to work in November 2005, which resulted in her being off work for just over a year.

Her employer refused to compensate her for the 22.5 days’ holiday she would have been taking if she had been working, saying French law made entitlement to paid annual leave conditional on an employee having worked a minimum of ten days during the reference period.

The European court said that while member states could set out specific conditions for the exercise of this right in their respective jurisdictions they could not restrict it by the application of any preconditions.

A separate question raised the issue of whether the Ms Dominguez accident should be regarded as work-related because it happened on the way to work.

Although not answering the question directly the Luxembourg judges said this should have no bearing on entitlement to paid holiday, which applied whether an employee was on sick leave “as a result of an accident at his place of work or elsewhere, or as the result of sickness of whatever nature or origin”.

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Contracts & Rights