The issue of unused holiday entitlement for temporary teachers is before the Court of Justice

The matter of unused holiday entitlement for temporary teachers appeared to have been settled following the recent ruling by the Court of Cassation, which, last May, had clarified that such entitlement is limited solely to the difference between the days to which teachers are entitled and the days on which lessons are suspended, as defined by the regional school calendars, without the need for specific notification from the headteacher – which is, however, required for the period between the end of term and 30 June.
Whilst case law on the merits was aligning with the aforementioned principle set out by the Court of Cassation, in an order dated 27 October, however, the labour judge at the Court of Milan, Dr Luigi Pazienza, referred the matter to the Court of Justice of the European Union, which will have the final say on the issue.

The Court of Milan has identified a number of issues with the structure of the Supreme Court’s judgement, which would result in unequal treatment regarding the taking of annual leave between fixed-term and permanent teachers, based on the duration of their employment, thereby breaching Clause 4 of the Framework Agreement on Fixed-Term Work.
In particular, only fixed-term teachers would be subject to a statutory deduction from their annual leave entitlement for days of suspension during the academic year, as they are unable to carry over their leave to the following year in the same way as permanent teachers, thereby forfeiting the replacement allowance for those days if they have not formally requested to take them.
Furthermore, the Court continues, the suspension of lessons does not necessarily coincide with the absence of any professional obligations, as the teacher may be engaged in staff meetings, assessment, professional development or other activities relevant to teaching; it must be ruled out that the mere absence of classroom teaching, on its own, demonstrates that the employee is free from obligations of availability and may devote their time to the rest and recreation characteristic of annual leave.

In light of these doubts, it will therefore be for the Court of Justice of the European Union to clarify whether Article 7 of Directive 2003/88/EC permits the loss of the allowance to be linked solely to the existence of periods predetermined by the regional school calendar during which the worker could have submitted an application, or whether it always requires proof that the employer has actually enabled the worker to take the leave and has informed them of the consequences of failing to do so, not least because the school calendar is not addressed to the individual worker and does not contain information on their individual holiday entitlement or the loss of the allowance.
According to the Milan Labour Court, treating the regional school calendar as equivalent to the notice required by European case law could, in fact, transform a general organisational measure into an absolute presumption of knowledge and voluntary waiver, thereby removing the employer’s burden of proof precisely in the context of a fixed-term contract where the termination prevents the subsequent exercise of the right.
It will therefore be for the CJEU to determine whether the issue highlighted constitutes a difference relating to a ‘condition of employment’ within the meaning of Clause 4 of the Framework Agreement and, if so, whether the mere expiry of the contract or the organisational needs of the school service constitute objective reasons, given that the temporary nature of the employment relationship, in and of itself, cannot be used as a justification for the less favourable treatment that stems precisely from it.