Employees have a right to annual leave or payment in lieu between illegal dismissal and reinstatement, ECJ rules
The European Court of Justice has ruled that for the period between an unlawful dismissal and reinstatement as an employee, workers are entitled to annual paid leave or to payment at the end of the employment relationship in lieu of leave accrued and not taken.
In these joined cases a Bulgarian school employee and an Italian bank employee were dismissed. These dismissals were subsequently held to be illegal and the employees were reinstated; subsequently both were legally dismissed. The cases concerned whether these employees had a right to, and should therefore be indemnified for, paid annual leave for the period between their illegal dismissal and reinstatement.
Findings of the Court
The European Court of Justice emphasised the particular importance of the right to paid holiday as a principle of EU law. It drew a parallel with the situation where a worker is unable to perform his or her duties due to sickness and is considered to have worked for the purposes of annual leave accrual. The Court considered this to be analogous with a period of absence from work as a result of an illegal dismissal. The fact that a worker has been deprived of the opportunity to work because of a dismissal that is subsequently found to be unlawful is unforeseeable and beyond the control of the worker. This means that the period between a worker’s unlawful dismissal and reinstatement in his or her employment must be treated in the same way as a period of actual work for the purposes of determining the entitlement to paid annual leave: that is, entitlement to leave accrues over this period.
Joined cases C‑762/18 and C‑37/19 Varhoven kasatsionen sad na Republika Bulgaria