Richard Grogan on employment law: Parental leave

Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors writes on parental leave.

The case H-V-Land Berlin case C-174/16 is interesting on a number of points. Firstly it is interesting in relation to the facts itself but secondly in relation to the approach the Court took to setting compensation.

On the issue of compensation the Court importantly stated that in order to compensate for the injuries suffered by an individual as a result of a breach of the particular Directives it is for the referring Court to apply the specific national measures adopted by the Member State pursuant to its obligations under those Directives. The Court importantly also stated:

“In doing so, it must ascertain that those measures ensure effective and efficient legal protection, have a genuine dissuasive effect with regard to the employer and are commensurate with the injury suffered.”

This decision is important in determining that in setting compensation for breach of directive rights it is not just the economic loss. It is not just the loss that the employee has suffered because of the breach of the Directive but that the compensation must “have a genuine dissuasive effect” on the employer.

In the case in question Ms H was a Civil Servant for life since 2002. Since her recruitment process she was upgraded to the status of a Civil Service on probation assigned to an executive post. She has previously held a junior post with less responsibility and lower pay.

From July 2011 till January 2012 Ms H was on sick leave for reasons connected with her pregnancy. At the end of January to the end of May she took statutory Maternity Leave followed by Convalescent Leave. At the end of May 2012 the employee granted the employee Parental Leave which was extended several times at her request.

In September 2014 she was advised that her probation for the period for the executive post had been unsuccessful as she had not successfully completed her two year probationary period. She never had actually occupied the post. The Court looked at Directives 2006/54 and 2010/18. The Court importantly stated that the Directive must be interpreted as precluding National Legislation under which a Civil Servant on probation who has been successful in the selection process for advancement to an executive post is obliged to complete a two year probationary period before her final appointment when the expiry of that period may not under any circumstances be suspended during her Parental Leave and when the start date also may not be differed to a time immediately after such Leave.

This is an important statement of principle in relation to assessing compensation and the principles applicable.