If an employee is unlawfully dismissed and then re-instated by a court order, is the employee entitled to annual leave for the interval between dismissal and re-employment?
Yes, is the preliminary ruling of the Advocate-General to the European Court of Justice in QH & CV.
The case concerns two references, from Bulgaria and Italy, to the CJEU. Where an employee is unable to benefit from the right to paid leave due to an employer’s unlawful act (i.e. unlawful dismissal), EU law should require that the employee receive four weeks paid annual leave entitlement in the period between dismissal and re-employment.
The situation is analogous to that of workers not at work due to long-term sickness absence or maternity leave, where the right to paid leave continues to apply.
However, if an unlawfully dismissed worker obtains employment with a new employer in the interim, this right should not apply as the new employer would be responsible for ensuring the right to paid leave during that period.
The Advocate-General’s ruling is not binding on the full Court, which may hear the full case later this year. Provided that final judgment comes during the implementation period, it will be binding in UK law.
This could apply in UK law in re-instatement/re-engagement situations in unfair dismissal cases, and interim relief applications.