Kathleen Greenfield v The Care Bureau Ltd.

• Jurisdiction: European Union
• Celex Number: 62014CJ0219
• ECLI: ECLI:EU:C:2015:745
• Docket Number: C-219/14
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 11 November 2015

JUDGMENT OF THE COURT (Sixth Chamber)

11 November 2015 ( * )

‛Reference for a preliminary ruling — Social policy — Framework Agreement on part-time work — Organisation of working time — Directive 2003/88/EC — Right to paid annual leave — Calculation of entitlement to leave in the event of an increase in working time — Interpretation of the pro rata temporis principle’

In Case C‑219/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Birmingham Employment Tribunal (United Kingdom), made by decision of 23 April 2014, received at the Court on 6 May 2014, in the proceedings

Kathleen Greenfield

v

The Care Bureau Ltd,

THE COURT (Sixth Chamber),

composed of F. Biltgen (Rapporteur), President of the Tenth Chamber, acting as the President of the Sixth Chamber, A. Borg Barthet and S. Rodin, Judges,

Advocate General: M. Szpunar,

Registrar: L. Hewlett, Administrator,

having regard to the written procedure and further to the hearing on 17 September 2015,

after considering the observations submitted on behalf of:

— The Care Bureau Ltd, by I. Pettifer, Solicitor,

— the United Kingdom Government, by L. Christie, acting as Agent, and G. Facenna, Barrister,

— the Spanish Government, by A. Gavela Llopis, acting as Agent,

— the Netherlands Government, by M. Bulterman and M. de Ree, acting as Agents,

— the Polish Government, by B. Majczyna, acting as Agent,

— the European Commission, by M. van Beek and J. Enegren, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of clause 4.2 of the Framework Agreement on part-time work concluded on 6 June 1997 (‘the Framework Agreement on part-time work’), annexed to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9), as amended by Council Directive 98/23/EC of 7 April 1998 (OJ 1998 L 131, p. 10), and of Article 7 of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L 299, p. 9).

2 The request was made in proceedings between Ms Greenfield and The Care Bureau Ltd (‘Care Bureau’) concerning the calculation of the allowance in lieu of paid annual leave not taken to which Ms Greenfield considers she is entitled following termination of her employment contract.

Legal context

EU law

3 Clause 4 of the Framework Agreement on part-time work, headed ‘Principle of non-discrimination’, states: ‘1. In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds. 2. Where appropriate, the principle of pro rata temporis shall apply.’

4 Clause 6.1 of the Framework Agreement on part-time work states:

5 In the words of recital 5 in the preamble to Directive 2003/88:

6 Article 7 of Directive 2003/88, headed ‘Annual leave’, is worded as follows: ‘1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice. 2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.’

7 Article 15 of that directive, headed ‘More favourable provisions’, provides: ‘This Directive shall not affect Member States’ right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers.’

8 Article 17 of that directive provides that Member States may derogate from certain provisions of that directive. However, no derogation is permitted with regard to Article 7 of the directive.

United Kingdom law

9 The Working Time Regulations 1998, SI 1998/1833, as amended by the Working Time (Amendment) Regulations 2007, SI 2007/2079, (‘the Working Time Regulations’) provide in regulation 13, in relation to the right to annual leave, that: ‘(1) Subject to paragraph (5), a worker is entitled to four weeks’ annual leave in each leave year. … (5) Where the date on which a worker’s employment begins is later than the date on which (by virtue of a relevant agreement) his first leave year begins, the leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (1) equal to the proportion of that leave year remaining on the date on which his employment begins.’

10 Regulation 13A of the Working Time Regulations provides: ‘(1) Subject to regulation 26A and paragraphs (3) and (5), a worker is entitled in each leave year to a period of additional leave determined in accordance with paragraph (2). (2) The period of additional leave to which a worker is entitled under paragraph (1) is – (a) in any leave year beginning on or after 1st October 2007 but before 1st April 2008, 0.8 weeks; (b) in any leave year beginning before 1st October 2007, a proportion of 0.8 weeks equivalent to the proportion of the year beginning on 1st October 2007 which would have elapsed at the end of that leave year; (c) in any leave year beginning on 1st April 2008, 0.8 weeks; (d) in any leave year beginning after 1st April 2008 but before 1st April 2009, 0.8 weeks and a proportion of another 0.8 weeks equivalent to the proportion of the year beginning on 1st April 2009 which would have elapsed at the end of that leave year; (e) in any leave year beginning on or after 1st April 2009, 1.6 weeks. (3) The aggregate entitlement provided for in paragraph (2) and regulation 13(1) is subject to a maximum of 28 days. (4) A worker’s leave year begins for the purposes of this regulation on the same date as the worker’s leave year begins for the purposes of regulation 13. (5) Where the date on which a worker’s employment begins is later than the date on which his first leave year begins, the additional leave to which he is entitled in that leave year is a proportion of the period applicable under paragraph (2) equal to the proportion of that leave year remaining on the date on which his employment begins. …’

11 Under regulation 14 of the Working Time Regulations: ‘(1) This regulation applies where: (a) a worker’s employment is terminated during the course of his leave year, and (b) on the date on which the termination takes effect (“the termination date”), the proportion he has taken of the leave to which he is entitled in the leave year under regulation 13 and regulation 13A differs from the proportion of the leave year which has expired. (2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3). (3) The payment due under paragraph (2) shall be – (a) such sum as may be provided for the purposes of this regulation in a relevant agreement, or (b) where there are no provisions of a relevant agreement which apply, a sum equal to the amount that would be due to the worker under regulation 16 in respect of a period of leave determined according to the formula – (A × B) – C where – A is the period of leave to which the worker is entitled under regulation 13 and regulation 13A; B is the proportion of the worker’s leave year which expired before the termination date, and C is the period of leave taken by the worker between the start of the leave year and the termination date. (4) A relevant agreement may provide that, where the proportion of leave taken by the worker exceeds the proportion of the leave year which has expired, he shall compensate his employer, whether by a payment, by undertaking additional work or otherwise.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

12 Ms Greenfield was employed by Care Bureau from 15 June 2009. She worked under a contract of employment in which it was stipulated that working hours and days differed from week to week. The remuneration payable for any week varied according to the number of days or hours of work performed.

13 Under both UK law and the contract of employment, Ms Greenfield was entitled to 5.6 weeks of leave per year. The leave year began on 15 June.

14 Ms Greenfield left Care Bureau on 28 May 2013. It is not disputed that she took 7 days of paid leave during the final leave year. She worked for a total of 1729.5 hours and took a total of 62.84 hours of paid leave.

15 Ms Greenfield took those 7 days of paid leave in July 2012. During the 12-week period immediately preceding that holiday, her work pattern was 1 day per week.

16 From August 2012 Ms Greenfield began working a pattern of 12 days...