ECJ's full-time settlement for part-time worker unlikely in UK, says expert

An employment law expert has said, though, that UK employees are unlikely to be able to make similar claims because parental leave is structured differently here to in The Netherlands.

A Ms Meerts was employed full-time by Proost between 1992 and 2003, with a number of career breaks. From November 2002 to May 2003 she worked half-time as a result of parental leave. She was due to resume full-time work on 17 May 2003.

Just nine days before her resumption of the full-time work she was dismissed and given 10 months' salary in compensation. The salary was calculated on the half-time basis on which she was then working.

Meerts challenged the settlement in the courts, claiming that she should be paid a settlement based on her full-time salary and not the pay she receieved while using her parental leave.

The ECJ agreed, saying that it would undermine the policy aims of laws designed to encourage women with families to work if companies could dismiss employees on parental leave and pay settlements based on the reduced wages.

It said that a framework agreement between employers and trade unions guaranteed certain rights and formed the basis of an EU Council Directive on parental leave.

"That body of rights and benefits would be compromised if, where the statutory period of notice was not observed in the event of dismissal during part-time parental leave, a worker employed on a full-time basis lost the right to have the compensation for dismissal due to him determined on the basis of the salary relating to his employment contract," said the ECJ.

"[National] legislation which would result in the rights flowing from the employment relationship being reduced in the event of parental leave could discourage workers from taking such leave and could encourage employers to dismiss workers who are on parental leave rather than other workers," it said. "This would run directly counter to the aim of the framework agreement on parental leave, one of the objectives of which is to make it easier to reconcile working and family life."

But UK workers are unlikely to benefit from the ruling according to Simon Horsfield, an employment law expert at Pinsent Masons, the law firm behind OUT-LAW.COM. He said that UK workers going part-time for family reasons are fundamentally altering their employment.

"In the UK if you go part time that would be a variation in your contract of employment," he said. "Any dismissal would be subject to the terms and conditions of that contract."

"An employer should be making it clear to someone who makes a flexible working request that once it is granted it is a permanent change and it is only at the employer's discretion that it might be reversed in the future," he said.

Horsfield said that the reason UK workers are unlikely to find themselves in a similar situation to Meerts is down to the way that parental leave operates in the UK.

"Employees are entitled to 13 weeks of parental leave per child, but you can't take that at a rate of a day a week to effectively go part-time," he said. "It must be taken a week at a time for up to four weeks a year until it is exhausted."