The French Employment Court was called upon to rule on the lawfulness of the refusal to allow certain workers to take several days of accrued and unused holiday leave due to prolonged absences from work due to illness. Similarly, the relevant allowance in lieu had been denied to those workers whose employment had ended. These claims were made within 15 months of the end of the one-year reference period during which the holiday entitlement arose.
The national court made a reference for a preliminary ruling to the European Court of Justice on three questions, listed below:
– the direct applicability in relations between private individuals of Article 7 of Directive 2003/88/EC on the organisation of working time;
– what is a reasonable carry-over period for the four weeks’ leave recognised by that directive, where the accrual period for leave is one year;
– is the application of an unlimited carry-over period in the absence of national legislation governing that period in line with European law.
The decision of the European Court of Justice of 9 November 2023, Case C-271/22, resolved the first question for a preliminary ruling in positive terms, starting from a detailed analysis of Article 7 of Directive 2003/88/EC, which, although in principle cannot be directly invoked in a dispute between private parties, specifies the fundamental right to an annual period of paid leave.
This provision must be read in conjunction with Article 31, paragraph 2, of the Charter of Fundamental Rights, which provides for the right of every worker to paid annual leave.
Consequently, according to the Court, a worker may rely on the right to paid annual leave against his or her employer, and the fact that the employer is a private company is irrelevant.
Continue reading the full version published in Norme & Tributi Plus Lavoro of Il Sole 24 Ore.
The Court of Cassation, in its judgment No. 980 of 17 January 2020, clarified that, in the context of disciplinary proceedings, the state of illness cannot in itself be sufficient to justify the inability to attend the hearing requested in order to make oral counter-arguments in relation to the contested facts.
Facts of the case
The case in question originates from a dismissal for just cause of an employee of Poste Italiane S.p.A. for abuse of his position, having persuaded some colleagues to activate Postpay prepaid cards in violation of certain internal procedures.
In the course of the disciplinary proceedings culminating in the expulsion order, the employee had requested to be heard orally about the serious contested facts within the legal time frame. However, once summoned to the defence, on two occasions, the employee had asked for the postponement of the meeting on the basis of attached certificates of illness.
In the objection and complaint proceedings in the Fornero procedure, both the Court [of First Instance] and the Bologna Court of Appeal confirmed the lawfulness of the dismissal. This was due to the fact that the employer had set a date for the hearing as requested by the employee, which was renewed because of his failure to appear at the first of two hearings due to illness. The company had also warned the employee of his need to complete the disciplinary procedure with the second date with respect to the provision of collective bargaining. As if that were not enough, the worker was invited to submit further written justification which, however, he failed to do.
The employee appealed against the decision on the merits to the Court of Cassation, complaining, among other things, of the infringement of his rights of defence at the disciplinary stage, since the company had not granted the second of the two deferments of the oral hearing requested by him on the grounds of illness.
The decision of the Court of Cassation
The Court of Cassation, in rejecting the worker’s appeal, considered the employer’s actions to be in line with the general principles of fairness and good contractual faith. In fact, at first, it had granted the postponement of the first meeting and, subsequently, had warned the worker of its unwillingness to grant a third date. But not only that. The Company had invited the worker to return his counterarguments in writing so as not to incur in forfeiture for late withdrawal, based on the provisions of collective bargaining in the sector.
According to the Court of Cassation, although it is true that the worker, in the context of disciplinary proceedings, has the right to be heard orally by the employer, it is not quite as true that they have the right to defer the meeting on the basis of any state of illness, since this in itself does not imply the absolute impossibility of leaving home temporarily. Rather, in the Court’s view, it is necessary to specifically allege and prove that the restricting nature of the illness suffered is an obstacle to physically leaving the house in order to constitute the ‘not otherwise protectable’ defence requirement.
The Court of Cassation, in fact, specifies that “the mere allegation, by the worker, even if certified, of the condition of illness cannot be sufficient in itself to justify the impossibility of attending the personal hearing requested, since it is necessary for him to deduce its nature as an obstacle to physically leaving the house (or the place of treatment), so that its postponement to a new date of personal hearing constitutes a de facto defence requirement that cannot otherwise be protected“.
The Court of Cassation, with judgement No. 17514 dated 4 July 2018, deemed justified the disciplinary dismissal ordered to a bus driver of a private rental company who, during a long period of absence from work for an ongoing injury, was found to be working for a car parking facility. On the same date, on 4 July 2018, the Court of Cassation has issued another order, No. 17424, where instead it ruled as unlawful a dismissal order to a disabled employee who could not work due to a gastroenteritis, who, during a period of absence, performed a self-employed activity offering outdoor painting services. The aforementioned conclusions, apparently contradictory, in truth find their common ground in the principle according to which carrying out a different work activity during leave from work due to illness cannot automatically lead to disciplinary consequences. This because it is necessary to check if such activity is incompatible with illness condition or such to impede or delay healing. Specifically in light of the above, the Court, with judgement No. 17514, deemed that the actions performed by the employee “appeared ictu oculi incompatible with the declaration of illness or however certainly such to delay if not even compromise physical recovery”. On the other hand, with order No. 17424, the Court verified that “the carrying out of the (extra) work activity during illness was not incompatible with the illness hindering the work activity, and it did not impair the normal psycho-physical health recovery”.
