Tag Archives: Andrew Smith

The importance of paid annual leave : Maribel Dominguez v Centre informatique du Centre Ouest Atlantique

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Andrew Smith

By a judgment rendered on 24 January 2012 the CJEU has once again reiterated the fundamental importance of paid annual leave, as laid down by the Working Time Directive (2003/88/EC). In C-282/10 Maribel Dominguez v Centre informatique du Centre Ouest Atlantique, a case concerning the compatibility of French employment legislation with the WTD, the Court held that the WTD “…must be interpreted as precluding Member States from unilaterally limiting the entitlement to paid annual leave conferred on all workers by applying a precondition which has the effect of preventing certain workers from benefiting from it…” (para 17).

The French legislation under consideration provided that a worker is only entitled to paid annual leave if s/he has worked for a minimum period of time during the reference period. The reference period is normally one year, and the stipulated ‘qualifying periods’ were stated as being: (a) until February 2008, one month; and (b) thereafter, ten days.

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Come Fly With Me Part II: Holiday Pay under EU Law

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Andrew Smith

Williams & Others v British Airways plc (C-155/10)

The CJEU last week (15 September 2011) handed down another important judgment in a claim brought by commercial airline pilots, seeking to enforce their employment law rights under EU law.

This claim concerned the proper method of calculating the amount of holiday pay owed to BA pilots, whose remuneration under their contracts of employment comprised three main components:

  1. A fixed annual salary;
  2. A supplemental payment which varied according to the time spent flying BA’s aircraft (calculated at £10 per flying hour); and
  3. A supplemental payment to compensate the pilots for time spent away from base (calculated at £2.73 per hour).

The ‘flying supplement’ was treated as fully taxable remuneration.  As regards the ‘off base’ supplement, 82% was treated as having been paid on account of expenses and only 18% was treated as taxable remuneration.

The claimants’ contracts of employment provided that their holiday pay entitlement was calculated by reference to the fixed annual salary only; the supplemental payments were disregarded for this purpose.

The UK Court of Appeal ([2009] IRLR 491) had accepted BA’s argument that the fixed annual salary alone constituted remuneration; and that its method of calculating workers’ entitlement to holiday pay was therefore permissible.

The Supreme Court ([2010] IRLR 451) referred the matter to the CJEU, requesting clarification of the correct approach under EU law. The relevant provisions under consideration by the CJEU were Article 7 of Council Directive 2003/88/EC (“the Working Time Directive”) and Clause 3 of the European Agreement annexed to Council Directive 2000/79/EC (“the Aviation Directive”).

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Come Fly With Me – Age Discrimination and Objective Justification

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Andrew Smith

Prigge & Ors v Deutsche Lufthansa AG (C-447/09) is the latest in a line of CJEU cases dealing with the question of whether the application of a default retirement age (“DRA”) constitutes unlawful age discrimination, contrary to the Directive on Equal Treatment in Employment and Occupation (2000/78/EC). In the domestic context, the national DRA was abolished with effect from 6 April 2011 (see The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 for details of the transitional provisions).  Under UK law, direct discrimination “because of” age is the only form of prohibited direct discrimination which may be justified by an employer. Section 13 (2) of the Equality Act 2010 provides that “If the protected characteristic is age, A does not [directly] discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim”.  Accordingly, the approach adopted by the CJEU in cases such as Prigge is of particular relevance to workers, employers and advisers grappling with the issue of “objective justification” in the context of direct age discrimination.

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