A court recently held that an employee's dismissal had been unlawful and ordered her to be reinstated. Following her reinstatement, the employee asked her employer to pay her an indemnity in lieu of holiday and leave not enjoyed in the period between her dismissal and her reinstatement, alleging that she had been unable to take holiday and leave because of the dismissal. On 8 March 2021 the Supreme Court (6319/2021) departed from its own precedents on this matter and ruled that the claim was grounded, in line with the European Court of Justice's (ECJ's) ruling in joined cases C-762/18 and C-37/19.

The Supreme Court recalled the ECJ's principle that the right to paid annual leave cannot be interpreted restrictively(1) and that the right to an allowance in lieu is not subject, under the EU Working Time Directive (2003/88), to any condition other than those relating to:

  • the termination of the employment relationship; and
  • the employee's failure to take all of the annual leave to which they were entitled as at the date on which that relationship ended.(2)

Although the right to leave has a twofold purpose – namely, to allow employees to rest in relation to the performance of the tasks assigned to them under their employment contract on the one hand and to benefit from a period of relaxation and recreation on the other hand(3) – the ECJ decision (Paragraph 59) cited by the Supreme Court stressed that in certain specific situations, where employees are unable to perform their duties, an EU member state cannot make the right to paid annual leave conditional on the obligation to have actually worked.(4)

The Supreme Court noted that the EU Working Time Directive does not allow EU member states to preclude the entitlement to paid holiday and leave or abolish it where employees have been prevented from exercising it. In the present case, the Supreme Court recalled the ECJ's ruling on the matter and held that the period between the date of the unlawful dismissal and the date of reinstatement must be treated as a period of actual work for the purposes of determining entitlement to annual leave and holiday.

For further information on this topic please contact Francesco Pedroni at Stanchi Studio Legale by telephone (+39 02 546 9522) or email ([email protected]). The Stanchi Studio Legale website can be accessed at www.stanchilaw.it.


(1) Sobczyszyn, C-178/15, EU:C:2016:502, Paragraph 21 and the case law cited therein.

(2) 6 November 2018, Kreuziger, C-619/16, EU:C:2018:872, Paragraph 31.

(3) Maschek, C-341/15, EU:2016:576, Paragraph 34 and the case law cited therein.

(4) 24 January 2012, Dominguez, C-282/10, EU:C:2012:33, Paragraph 20 and the case law cited therein.