Workers should be entitled to retrospective holiday pay, says ECJ Advocate General

Workers should be entitled to retrospective holiday pay, says ECJ Advocate General

In a long-running Tribunal case, an Advocate General of the European Court of Justice has stated that in their opinion if an employer does not provide a worker with paid leave, it should be carried over until the worker has the opportunity to take it.

The background

The claimant, Mr King, worked for Sash Window Workshop Ltd (SWWL) from 1999 to 2012.

His contract of employment described him as being self-employed. He was paid purely on commission. Whilst he could decline work, in practice he never did.

His contract was silent as to whether he was entitled to paid leave, but he took various minimal amounts of unpaid leave during his engagement.

Mr King was offered an employment contract in 2008 but declined, and chose to remain self-employed.

His contract was terminated in 2012, on his 65th birthday.

He brought a number of claims including a claim that he had been subjected to unlawful deductions from his wages over his 13 years’ service. He claimed compensation for loss of holiday pay for the unpaid leave he had taken as well as pay for the holiday that he had accrued but not taken.

The Tribunal decision

Mr King was found by an Employment Tribunal to be a ‘worker’ and is claims were successful.

On appeal to the ECJ the Court was asked to consider whether the Working Time Directive required workers to request or take annual leave before they could present a claim in respect of a failure to pay it.

The ECJ Advocate General’s opinion

In their opinion, the Advocate General found it was incompatible with the Working Time Directive to require a worker to take leave, before they were entitled to bring a claim for a failure to make payment for leave.

So if a worker was not provided with the opportunity to take annual leave, the worker would be entitled to a payment in lieu on termination.

What this means for you

An Advocate General’s opinion is not binding on the ECJ nor on employers at this stage. Although, in most cases, the opinion of the Advocate General is followed.

The potential outcome of this case if the opinion is followed is far reaching, particularly given the recent high profile cases involving the “gig economy” and unless the ECJ limits the carry-over period, a finding of worker status could result in further substantial amounts of holiday pay being due.

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