Employment legislation at national and European level gives employees, particularly those who work unusual patterns, more protection against unfair treatment. In this article we look at an Austrian case of Zentralbetriebsrat der Landeskrankenhauser Tirols v Land Tirol in which the European Court of Justice (ECJ) was asked to examine whether Austrian law was incompatible with EU law in that it treated atypical workers less favourably than those with a more normal working arrangement.
In this case, the employee initially started working on a full-time basis and during that period accrued entitlement to annual leave. The employee then changed to working part-time and, as a result, the employer reduced the annual leave on a pro-rata basis and the employee lost some annual leave that had been accrued but untaken. The ECJ held that a worker’s right to paid annual leave was a particularly important principle of EU law from which there can be no derogation. The positive effect of annual leave continues to be of significance if the leave is not taken during the reference period when it becomes due, but rather is taken during a later period. Therefore it bore no relevance in this case that the employee was only working part-time at the time that they wished to exercise the annual leave.
The flip side to this is of course that, where an employee changes from part-time to full-time work, they will not be entitled to a proportionate increase in accrued holiday.
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