Advocate General J Richard de la Tour
The claimant worker, who was employed by the defendant employer in the Czech Republic, was given notice of dismissal. The worker was reinstated in that employment some three years later, following the invalidation of that notice of dismissal by a court. The worker was not assigned any work during the three-year period between her dismissal and reinstatement, although she had notified her employer of her wish to work. Following her reinstatement, the worker requested to take her unused annual leave for the three-year period, but the employer refused on the ground that she had not worked during that period. Despite that refusal, the worker did not attend work during the days in respect of which she had requested leave, and was subsequently dismissed on the ground of impermissible absence. The worker brought a claim before a Czech court for compensation for the days of leave for the three-year period. Her action was dismissed by the regional court and the worker appealed to the Supreme Court. That court observed that, under national case law, in the event that the termination of an employment relationship had been held to be invalid, the worker was entitled to wage compensation throughout the duration of the legal proceedings and to compensation for the harm suffered as a result of the invalidation of the dismissal. However, where the worker had not actually worked during the period between notifying the employer of their wish to work and the invalidation of their dismissal, the worker did not have the right to paid annual leave during that period. According to the Czech court, the national case law appeared to be at odds with European Union case law concerning the right to paid annual leave contained in article 7(1) of Parliament and Council Directive 2003/88/EC. In those circumstances, the Supreme Court, Czech Republic stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question, in essence, whether article 7(1) of Directive 2003/88 precluded national case law by virtue of which a worker unlawfully dismissed and then reinstated in their employment, in accordance with national law, following the annulment of their dismissal by a decision of a court, was not entitled to paid annual leave for the period between the date of the dismissal and the date of reinstatement, on the ground that, during that period, that worker did not actually carry out work for the employer, as the latter did not assign them work and as the worker was already entitled, under national law, to wage compensation during that period.
On the reference—
Held, it was apparent from case law of the Court of Justice, that Directive 2003/88 treated the right to annual leave and to a payment on that account as being two aspects of a single right. The right to annual leave thus also included a right to a payment and the right to an allowance in lieu of annual leave not taken upon termination of the employment relationship. It followed that it was irrelevant, for the purposes of entitlement to paid annual leave, that the amount of the wage compensation which, pursuant to national law, was to be paid to the worker unlawfully dismissed in respect of the period between the date of dismissal and the date of reinstatement corresponded to the average salary received by that worker, since the purpose of that wage compensation was to compensate the worker for the remuneration not received as a result of the unlawful dismissal. Further, the right to paid annual leave, which resulted directly from Directive 2003/88, could not be interpreted restrictively, since the worker had to be regarded as the weaker party in the employment relationship, so that it was necessary to prevent the employer from being in a position to impose a restriction of their rights. Accordingly, article 7(1) of Directive 2003/88 precluded national case law by virtue of which a worker unlawfully dismissed and then reinstated in their employment, in accordance with national law, following the annulment of their dismissal by a decision of a court, was not entitled to paid annual leave for the period between the date of the dismissal and the date of reinstatement, on the ground that, during that period, that worker did not actually carry out work for the employer as the latter did not assign them work and as the worker was already entitled, under national law, to wage compensation during that period (judgment, paras 41–45, operative part).
Z Odehnal for the worker.
L Smejkal for the employer.
P Němečková and D Recchia, agents, for the European Commission.