Court of Justice: the mere fact that a worker did not apply for leave cannot automatically entail the loss of the right to an allowance

Advocate General Bot proposes that the Court of Justice should hold that the mere fact that a worker did not apply for leave cannot automatically entail the loss of the right to an allowance in lieu of untaken leave at the end of the employment relationship.

However, where the employer shows that he took the necessary steps to enable workers to exercise their right to paid annual leave and, in spite of the measures taken, the worker deliberately declined to exercise that right even though he was able to do so during the employment relationship, that worker cannot claim the allowance

Execirse the right

The Advocate General proposes in particular that the Court should state in answer that the directive precludes national legislation or practice, such as that at issue, in accordance with which a worker loses his right to an allowance in lieu of untaken paid annual leave at the end of the employment relationship where he did not apply for that leave while he was in active service and does not show that he was unable to take the leave for reasons beyond his control, without prior verification of whether that worker was actually given the opportunity by his employer to exercise his right to paid annual leave.

The Advocate General also proposes that the Court should answer that, where a national court is dealing with a dispute relating to a right to an allowance in lieu of untaken paid annual leave at the end of the employment relationship, it must ascertain whether the employer shows that he took the appropriate measures to ensure that the worker concerned was able actually to exercise his right to paid annual leave during that relationship.

If the employer shows that he took the necessary steps and that, in spite of the measures which he took, the worker deliberately and in an informed manner declined to exercise his right to paid annual leave even though he was able to do so, that worker cannot claim, on the basis of the directive, payment of an allowance in lieu of untaken paid annual leave at the end of the employment relationship.

In support of this approach, the Advocate General recalls that, according to the Court, the directive embodies the rule that a worker must normally be entitled to actual rest, with a view to ensuring effective protection of his health and safety.

According to the Advocate General, the employer has a special responsibility in order that the workers under his control actually exercise their right to paid annual leave. Thus, the employer must adopt specific measures of organisation appropriate for enabling the workers to exercise theirright to paid annual leave. He must in particular inform the workers in good time that, if they do not actually take their leave, it might be lost at the end of the reference period or an authorised carryover period.

He must also inform them that, if they do not take leave during the course of the employment relationship although they are actually able to do so, they will not be able to claim entitlement to an allowance in lieu of untaken paid annual leave at the end of the employment relationship. However, the obligation borne by the employer does not extend to requiring the employer to force his workers to claim the rest periods due to them.

The Advocate General takes the view that it is necessary to ensure that the possibility provided for by the directive of replacing the minimum period of paid annual leave by an allowance in lieu where an employment relationship ends cannot be used by workers as a tool to build up days of paid annual leave in order to secure remuneration from them at the end of the employment relationship.

The Advocate General points out in this regard that the protection of the worker’s safety and health is not just in the worker’s individual interest, but also in the interest of his employer and in the general interest. Click here for further information.