Justice – Photo © James Steidl – Fotolia
(LUXEMBOURG) – An employee ending his employment of his own will is nevertheless entitled to an allowance if he was not able to use up all or part of his right to paid annual leave, the EU Court ruled Wednesday.
The ruling concerned a Mr Hans Maschek, a Viennese civil servant, who retired, at his own request, with effect from 1 July 2012. Between 15 November 2010 and 30 June 2012, he did not report to his work place. During the period from 15 November to 31 December 2010, Mr Maschek was on sick leave. From 1 January 2011, he was required, in accordance with an agreement concluded with his employer, to not report to his workplace, while continuing to receive his salary.
Following his retirement, Mr Maschek asked his employer for an allowance in lieu of paid annual leave not taken, claiming that he had fallen ill again shortly before he retired. This was refused on the grounds that, according to the rules on the remuneration of civil servants of the city of Vienna, a worker who, at his own request, terminates the employment relationship – particularly because he applies for retirement – is not entitled to such an allowance.
The Viennese authorities had asked the EU’s top Court whether such rules are compatible with EU law and, more specifically, with EU Directive 2003/88.
The Directive provides that every worker is entitled to paid annual leave of at least four weeks and that the right to paid annual leave is a particularly important principle of EU social law. It is granted to every worker, whatever his state of health. When the employment relationship comes to an end and paid annual leave can therefore no longer be taken, the Directive states that the worker is entitled to an allowance in lieu in order to prevent the impossibility of taking leave leading to a situation in which the worker loses all enjoyment of that right, even in pecuniary form.
The Court ruled that the reason why the employment relationship has ended was irrelevant, as was the fact that a worker terminates, at his own request, the employment relationship.
The Court concluded that the Directive precludes national legislation such as that on the rules on the remuneration of civil servants of the city of Vienna, which deprives the worker, whose employment relationship was terminated following his request for retirement, of an allowance in lieu of paid annual leave not taken and who has been unable to use up his entitlement to paid annual leave before the end of that employment relations.
