A series of releases on the failures of employment law
A cornerstone of a civilized society is a fair and equitable legal system. But what about the legitimacy of laws if they are not applied by the very agencies that create and enforce them? That unfortunately is the case across many parts of the globe today and is of particular concern for multinational enterprises that so often become the easy victim of such arbitrary acts.
The lost right to annual leave
How the European Union (EU) conspires to undermine its own provisions.
Not only EU Member States’ national laws and courts, but also the European Court of Justice (ECJ) itself appears to ignore the legislators’ intent when drafting the Working Time Directive – a measure designed ensure the health and safety of all workers.
The 2003 Working Time Directive requires that “Member States […] ensure that every worker is entitled to paid annual leave of at least four weeks […]” and no derogations are allowed from this provision. Recital 4 of the Directive links its content to the improvement of workers’ safety and health at work, which, in the view of the EU legislative institutions, “is an objective which should not be subordinated to purely economic considerations”.
In general, the relevant national laws of each Member State grant employees at least four weeks’ paid annual leave and – in principle – statutory holidays must be taken within the calendar year in which they were accrued. Yet, the laws of several countries such as Italy, Germany and Luxembourg unlawfully allow for holidays which have not been taken by an employee within the year of accrual to be carried forward to the next year. In Germany and Luxembourg, for instance, employees may opt not to use any of their leave in a given year and instead take it during the first three months of the following year, whilst, in Italy, employees need only take half their statutory entitlement in one year and take the remainder any time during the period of one and a half years after that.
What is most surprising is that the European Court of Justice (ECJ) – in a series of rulings – has flown in the face of the clear intention of the Directive – even allowing forfeiture of statutory leave rights after a short carryover window. For instance, in a recent decision on a German case, the ECJ held that employers are not required to enforce the taking of holidays, just to make the facility to do so.
FedEE’s Secretary-General, Robin Chater comments that “In finding that statutory holiday rights must not be enforced the ECJ is wrong, as the EU Working Time Directive was established as a “health and safety measure” and, as such, the taking of statutory time off should be non-negotiable. It appears that, over the course of time, the EU and its institutions have adopted lax attitudes towards the Member States’ repeated deviations from common rules.”