In a decree published yesterday, November 8, the European Court of Justice ruled that Community law allows reducing the annual paid leave of employees whose working time was shortened because of a social plan following the prorata temporis rule. Since Community jurisprudence tends not to take actual working time into account as regards annual leave (AL) rights, it was legitimate for the national judges/plaintiffs to ask this question to the Court. However, the judges thought that their reasoning for cases where workers cannot work because of a sick leave cannot be transferred to cases where working time is reduced as part of a social measure, even if the employee is not responsible for the impossibility. What is really new is that the Court's ruling is based on the fact that this working time reduction (in this case zero hour short-time working) was the result of a company agreement aiming to limit the social impact of an economic layoff. In addition to the context of this working time reduction, the judges ruled that the situation of a sick worker is different from that of a worker on short-time working as the latter "is free to rest or to devote himself to recreational and leisure activities." (Ref. 120658)
The ECJ has been very forthcoming in terms of AL and the interpretation of Directive 2003/88 concerning certain aspects of the organization of working time and the European Social Charter. It laid down the principle that sick employees keep acquiring AL rights during their sick leave (see our dispatches No. 090074 and 120057). Maybe thinking that this case law would apply to their situation, two German employees, laid off for economic reasons as part of a social plan negotiated with the...
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