A worker shall be entitled, for the period between the date of his or her unlawful dismissal and his or her reinstatement in their former employment, to paid annual leave or, at the end of the employment relationship, to compensation in lieu of such leave which was not taken. Furthermore, if, during this period, he or she has held a new job, he or she will only be able to assert rights corresponding to the period of this new job against the new employer.
With this judgment delivered on Thursday 25 June, the Court of Justice of the EU is responding to two preliminary rulings by the District Court of Haskovo in Bulgaria (Case C-762/18) and the Italian Supreme Court of Cassation (Case C-37/19), called upon to rule on the case of two female employees, unlawfully dismissed and reinstated following judicial decisions and subsequently dismissed again, who claimed, inter alia, compensation for unused paid leave during the period of their unlawful dismissal.
The two courts asked the Court to interpret EU law (Directive 2003/88/EC on certain aspects of the organisation of working time and Article 31(2) of the Charter of Fundamental Rights) to determine whether the persons concerned were entitled to paid leave for the period between their unlawful dismissal and their reinstatement with the same employer and could claim from the latter a financial compensation in lieu of leave not taken, despite the fact that they were not in its service.
The Court answered both questions in the affirmative. According to the European court, unlawful dismissal is, by its nature, unforeseeable for a worker and beyond his or her control, and, on that basis, the right to paid annual leave cannot be made subject to the obligation to have actually worked. Consequently, the period between the unlawful dismissal and the reinstatement of the worker in their employment must be treated as a period of actual work for the purpose of determining their entitlement to paid annual leave and the worker is entitled to the paid annual leave acquired during that period. Furthermore, if the person concerned is dismissed again after reinstatement or if the employment relationship is terminated for any other reason, he or she shall be entitled to compensation for unused annual leave.
The Court specifies, however, that if the worker has worked for another employer during the period between his or her unlawful dismissal and his or her reinstatement, he or she may only assert their rights to paid annual leave corresponding to the period during which he or she held that employment with the other employer. (Original version in French by Francesco Gariazzo)