Veitch Penny LLP - Exeter | Crediton, Devon

Case

Merino Gomez v Continental Industrias del Caucho SA
European Court of Justice - (18 March 2004)

Issues

(1) European law
(2) Annual leave entitlement
(3) Maternity entitlements

Facts

European law states that all member states must ensure that every worker is entitled to at least 4 weeks annual leave. It also states that member states have the right to introduce laws which are more favourable to the protection of their workers health and safety rights. Under Spanish law all workers are entitled to at least 30 days annual leave.

Merino Gomez was employed as a factory worker in Spain. At her place of work, a collective agreement set out two fixed periods of leave in July (16th July to 12th August) and in August (6th August to 2nd September). Six workers would take leave in September each year with priority given to those who could not choose when to take their holiday the previous year.

Gomez was on maternity leave from 5th May 2001 to 24th August 2001. She applied to take holiday in the exceptional period in September after her maternity leave had ended. She was refused as she had chosen her holiday in the previous year.

A claim was commenced arguing that allowing the 2 periods of leave to overlap would force Gomez to lose one period of her holiday entitlement.

The Spanish Courts raised 2 issues to the European Court of Justice.

1. Whether a European legislation allowed a worker the right to take annual leave during the period outside the periods agreed by collective agreement, in circumstances where a collective agreement between the employer and the workers’ representative fixed the timing of leave for all the workers, and

2. Whether such entitlement extended to leave guaranteed by a national legislation that was greater than the 4 weeks allowed by European law.

Decision

1. Gomez was entitled to take her annual leave at a time which did not overlap with her maternity leave even when there was a clash between the maternity leave and the collective agreement leave period.

2. There would be no derogation of each workers’ rights to paid leave. Where a member state gives a longer period of leave entitlement over and above the European entitlement, then the whole period is protected

Comments

This case confirms that the time spent on maternity leave does not count against the employee’s entitlement to annual leave. As a result, any outstanding annual leave should be taken before the start of maternity (perhaps by delaying the start) or at the end of maternity leave.