Parental leave

Meerts v Proost NV

The EC framework agreement on parental leave states that workers retain their rights from the date the leave starts until it ends.  In Meerts v Proost NV the European Court of Justice (ECJ) said that workers on part-time parental leave who are dismissed without notice during the leave are entitled to compensation calculated on their full-time rather than their part-time salary.

Basic facts

Ms Meerts, who had worked full time for Proost NV from 1992, started working part time in November 2002 in connection with taking parental leave. Nine days before her leave was due to end, she was dismissed without any notice. Under Belgian law she was entitled to compensation for dismissal , but as she was working part time when she was dismissed, this was calculated on her part-time hours.

She challenged that approach, arguing that Proost NV should have to pay compensation on the basis of the full-time salary to which she would have been entitled, had she not gone on parental leave. However, her application was dismissed by the local labour court and the appeal court.

Ms Meerts appealed again and the Court of Cassation (the Belgian equivalent of the Supreme Court) asked the ECJ to decide whether clauses 2.4 to 2.7 of the framework agreement on parental leave entitled workers dismissed without statutory notice to a payment in lieu of notice based on their full-time or part-time salary. (That is, unless the employee was dismissed for “urgent cause” such as gross misconduct, in which case they would be dismissed without notice and so would not be entitled to notice pay).

Relevant law

The 1996 framework agreement on parental leave states, in particular, at clauses 2.6 and 2.7:

Regulation 2.6 - rights acquired or in the process of being acquired by the worker on the date on which parental leave starts shall be maintained as they stand until the end of parental leave. At the end of parental leave, these rights, including any changes arising from national law, collective agreements or practice, shall apply.

Regulation 2.7 - member states and/or management and labour shall define the status of the employment contract or employment relationship for the period of parental leave.

ECJ decision

The ECJ said that the whole point of clause 2.6 was to avoid the loss of or reduction in rights at the end of the leave to which workers had been entitled when they started it. As a particularly important principle of Community social law, it must not be interpreted restrictively.

It was clear from the objectives of the framework agreement that the concept of “rights acquired or in the process of being acquired” covered all the rights and benefits (whether in cash or in kind and whether derived directly or indirectly) which workers can claim from their employer when their parental leave starts. This included a period of notice if their employer unilaterally terminated their contract provided that this was not a dismissal for “urgent cause”.

The ECJ accepted that a worker on part-time parental leave did not work as many hours as a full time worker, but that did not mean that “the two workers are in a different position in relation to the initial employment contract with their employer”.

Although clause 2.7 of the agreement gave member states the right to define the status of the employment contract during parental leave, this was “without prejudice to Clause 2.6”.
Otherwise entitlement to rights and benefits would be compromised with the result that workers might be discouraged from taking their leave and employers might be encouraged to dismiss workers on parental leave rather than other workers. This would run directly counter to the aim of the agreement.

Clauses 2.6 and 2.7 therefore had to be interpreted as meaning that, if an employer unilaterally terminated the contract of a full time worker who was on part-time parental leave without notice, the worker’s compensation should not be calculated on the basis of their reduced salary.