Meerts v Proost NV
The ECJ held that employees should have their rights subsisting immediately prior to taking parental leave preserved, if they are dismissed during the parental leave period. In this case the ECJ held that this meant workers should not receive less pay as a result of taking parental leave than they would have done had they not taken parental leave.
This is an unusual case in that it concerns the taking of part-time parental leave, which is provided for under Belgian law, but not under UK law. However, the principle that employees should not be disadvantaged because they have taken parental leave may give rise to challenges to the UK parental leave regulations if employees are dismissed during their parental leave period. Under UK law such an employee could receive no notice pay whereas this case suggests full pay should be received for their notice period. There is no reason to do anything differently as yet, but watch this space.
The question to be decided by the ECJ in this case was whether the Parental Leave Directive entitled workers on part-time parental leave who are dismissed without their statutory notice, to compensation for their notice period based on their full-time salary or their prevailing part-time parental leave salary.
Ms Meerts reduced her hours with Proost NV from full time to part-time, as part of a fixed term parental leave arrangement. Shortly before the parental leave arrangement was due to end, Proost NV dismissed Ms Meerts with immediate effect and paid her 10 months' compensation based on her part-time parental leave salary. Ms Meerts brought a claim that Proost NV should be ordered to pay her compensation based on the full-time salary she would have received had she not reduced her working hours under the parental leave arrangement.
The ECJ concluded that the provisions of Belgian law allowing for payment of reduced compensation relating to notice periods as a result of having taken parental leave, was contrary to the objectives of the Parental Leave Directive. The ECJ considered that a worker’s right to maintain rights subsisting at the point immediately prior to taking parental leave would be compromised if, in the event of dismissal during part-time parental leave, a worker employed on a full-time basis lost the right to have their compensation for dismissal calculated on the basis of their pre-parental leave full-time salary.
This decision does not have a direct impact on the UK law in this area, however, it does raise the question of whether section 88(1) of the Employment Rights Act 1996 (“the ERA”) is compatible with the Parental Leave Directive.
Section 88(1) provides that if an employer on parental leave has a contractual notice entitlement exceeding the relevant statutory notice period by more than one week, they shall have no right to normal salary if they are dismissed during parental leave and their contractual notice period coincides with their parental leave.
It remains to be seen whether this decision will pave the way for a challenge to the compatibility of the above provisions of the ERA with the Parental Leave Directive.