Untaken holiday leave should be carried over where a worker is has not been provided with paid leave until he has the opportunity to exercise it and on termination of employment the worker has the right to payment in lieu of leave that remains outstanding, is the opinion of an Advocate General.
The individual, in this case, was described as self employed. He was paid entirely on commission. His contract did not specify if he was entitled to paid leave and he was not paid for any leave taken in 13 years. After being dismissed when he reached 65, he brought claims for holiday pay to an employment tribunal.
The tribunal ruled that he was a worker. Following an appeal to the Employment Appeal Tribunal a further appeal was made to the Court of Appeal.
The Court of Appeal asked the European Court of Justice to clarify whether, in circumstances where there is a dispute between a worker and employer as to whether the worker is entitled to annual leave with pay, it is compatible with EU law if the worker has to take leave first before being able to establish whether he is entitled to be paid.
The European Court of Justice has yet to make its decision in this case. However, an Advocate General has given his opinion on the matter. The Court is not obliged to follow the Advocate General’s opinion, although in practice it generally does.
Holiday leave to be carried over
In the Advocate General’s opinion where an employer has not provided a worker with paid leave, the right to paid leave carries over until he has the opportunity to exercise it and on termination of employment the worker has the right to payment in lieu of leave that remains outstanding.
He said that it was incompatible with EU law to require a worker to take annual leave before being able to ascertain whether he will be paid for it. In his view, to do otherwise would amount to requiring the worker to take active steps to secure the creation of an adequate facility for the exercise of the right to paid annual leave, which he considered to be incompatible with EU law. He also considered that it would make the right to paid leave excessively difficult to enforce.
Case reference: King v The Sash Window Workshop Ltd