ECJ | Austrian legislation grating certain employees a day’s holiday on Good Friday held detrimental to other employees

European Court of Justice (ECJ): The Bench comprising of K. Lenaerts, President; R. Silva de Lapuerta, Vice-President; J.C. Bonichot, A. Arabadjiev, A. Prechal, C. Toader and C. Lycourgos (Rapporteur), Presidents of Chambers, directed equal treatment for all employees until the Austrian legislation was amended.

The respondent who was employed under a private detective agency was denied public holiday pay for the work he did on a ‘Good Friday’ which he claims to be arbitrary and demands to be treated at par with the employees who were members of Evangelical Churches of the Augsburg and Helvetic Confessions, the Old Catholic Church and the United Methodist Church, for which he seeks pay from the petitioner.

The question raised in this case was regarding the Austrian law of a paid public holiday, which was only given to practice the religion on a given specified day for which the consent of the employer was not needed and if the employee for some reason has to work on that day he stands reimbursed by the employer. The principle of ‘equal treatment’ under Article 2(2) (a) of  Directive 2000/78 of European Union law was submitted wherein discrimination occurred where one person was treated less favourably than another in a comparable situation on account of religion.

The Court was of the view that if the execution of legislation demands bestowing some freedom only upon a certain religion, it was purely detrimental for the others. It also noted that relaxation was not given to perform a particular religious duty, but was subject only to the condition that such an employee must formally belong to one of those churches. Accordingly, it stated that until the Country reinstates measures to abolish this arbitrariness, observance of the principle of equality can be ensured only by granting to persons within the disadvantaged category the same advantages as those enjoyed by persons within the favoured category.

Thus the principle of Article 21 of the Charter of Fundamental Rights of the European Union was applied which says that until the Member State concerned has amended its legislation restoring an equal treatment towards the ‘other’ employees, a duty be imposed upon the employer to allow the employee to be absent from work on the prescribed holiday if not compensate him for the same.[Cresco Investigation GmbH v. Markus Achatzi, C-193/17, order dated 22-01-2019]

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