The CJEU says teachers’ holiday pay must also include income from a second contract

Income earned by a teacher through a second employment contract, for a fixed term and paid by the hour, must be taken into account when determining remuneration for annual leave, even if the teacher already has a primary contract of indefinite duration and on a full-time basis. The Court of Justice of the European Union ruled on Thursday, 8 October, that EU law precludes legislation and a practice such as those applied in Romania, which take into account only the primary contract.

In brief

The judgment concerns 14 teachers from Romania who combined a full-time contract with a separate part-time contract paid by the hour.

Remuneration for annual leave must be calculated taking into account the work performed and the income earned under both contracts.

The food allowance must also be granted proportionally for the work performed under the hourly-paid contract and must be included in the remuneration relating to leave.

The judgment does not mean that a second full period of 62 days of leave is granted. The principle of proportionality continues to apply.

The CJEU interprets EU law and does not determine the amounts owed to the 14 employees. The Iași Court of Appeal must resolve the dispute on the basis of this interpretation.

The case originated with 14 members of teaching or auxiliary teaching staff represented by the “Didactica” Vaslui Trade Union in a dispute with the “Mihai Eminescu” Secondary School in Vaslui. During the school years between 2019 and 2022, the employees had indefinite-duration, full-time contracts and simultaneously concluded fixed-term, part-time contracts paid by the hour, generally for the period from September to June.

Financial entitlements related to annual leave and food allowances were calculated solely on the basis of the full-time contracts. The trade union argued that the work performed under the additional contracts had to be taken into account proportionally both for remuneration relating to leave and for the food allowance.

The Vaslui Tribunal upheld the teachers’ claim in 2023. The school appealed the decision, and the Iași Court of Appeal asked the CJEU to determine whether European rules allow financial entitlements to be calculated exclusively on the basis of the main contract when the same employee also has a separate part-time, fixed-term contract.

The Court starts from the fundamental right of every worker to paid annual leave. The “paid” nature of leave means that, in terms of remuneration, the worker must be in a situation comparable to periods during which they work. The automatic exclusion of the work and income associated with the second contract reduces the remuneration received during the leave period.

The CJEU also examined the issue in light of European rules against discrimination of part-time and fixed-term workers. An employee may not be treated less favorably solely because their second contract is part-time or fixed-term, if the situation is comparable and there are no objective reasons justifying the difference.

The Court found that the justification invoked in connection with the particularities of the education system does not, in itself, allow the remuneration relating to the second contract to be excluded. The pro rata temporis principle may be used to calculate entitlements proportionally to the work actually performed. It may not be used to completely eliminate the additional contract from the calculation.

This distinction is important for the practical effect of the judgment. A teacher with an additional hourly-paid contract does not automatically acquire another full 62-day leave period for the same school year. The right at issue concerns taking into account, proportionally, the work and income earned through the second contract when determining remuneration relating to leave.

The judgment addresses the food allowance separately. The CJEU considers it a component of remuneration and, consequently, a condition of employment covered by protection against discrimination of part-time and fixed-term workers.

In the situation examined, the allowance was granted only for the time worked under the primary contract. The Court holds that EU law precludes such a practice: the allowance must also be granted for the additional contract, in proportion to the time actually worked. In addition, the corresponding portion of the allowance must be included in the calculation of remuneration for annual leave.

The case is particularly significant in Romania because, in September 2024, the High Court of Cassation and Justice had reached, through Decision No. 41, the interpretation of national law according to which teaching staff who also perform work under an hourly-payment arrangement, through the cumulation of contracts with the same institution, are not entitled, in respect of that work, to paid leave or to compensation for unused leave upon termination of the fixed-term contract.

The CJEU does not annul Decision No. 41 of the High Court or the Romanian provisions through a judgment delivered in the preliminary-ruling procedure. It does, however, establish the binding interpretation of EU law: a national rule or practice that produces the exclusion described in the Vaslui case is incompatible with European rules on paid leave and non-discrimination.

The case also examined the methodological rules of 2021 concerning leave for teaching staff, under which teaching staff who also perform work under an hourly-payment arrangement are entitled to paid leave only for their primary position. In the meantime, the National Education Law of 2011 was repealed, and the current framework for pre-university education is Law No. 198/2023. This law retains the right of teaching staff in state education to 62 working days of paid annual leave.

The CJEU judgment does not automatically establish what amount must be paid to each of the 14 employees, nor does it retroactively award money to all teachers in an apparently similar situation. The Iași Court of Appeal must now resolve the main proceedings in accordance with the interpretation of EU law, and any similar disputes will have to be examined according to the contracts, periods, and salary entitlements applicable to each individual.

https://2eu.brussels/ro/news/cjue-spune-ca-plata-concediului-profesorilor-trebuie-sa-includa-si-veniturile-din-al-doilea-contract