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By Spencers Solicitors

  Philip McCabe    
  April 5, 2017

Holiday pay – the next big case...

It is established law that annual leave can be carried over into the following holiday year if the worker is prevented from taking the holiday through sickness. But what if they are prevented from taking leave for other reasons beyond their control?

The European Court of Justice (ECJ) is considering whether to extend the circumstances where employers must allow workers to carry over holiday.

Holiday pay – the next big case

In Sash Window Workshop Ltd and another v King, Mr King was a commission-only salesperson who worked for the window company on a self-employed basis for some 13 years. His annual leave was unpaid. Some years, he took his full annual leave entitlement, but in others, he did not request all of it because, if he was not working, he would not get any pay.

Mr King’s time with the company ended. Among the claims he brought in Tribunal were was one for a series of unlawful deductions from wages for holiday not taken.

The Tribunal accepted that both parties had mistakenly believed that Mr King was self-employed when in fact he was in a worker and as he was unable to exercise the right to take annual leave, he was entitled to carry that leave forward into the next leave year – despite making no request to do so.

The Tribunal saw no difference in principle between being unable to take paid leave through sickness and the circumstances in Mr King’s case. The Employment Appeal Tribunal (EAT) agreed. In theory, sick leave may not be the only situation that might prevent a worker from taking their annual leave and sent the case back to the original Tribunal to consider if Mr King was truly “unable”, for reasons beyond his control, to take annual leave and as a consequence did not exercise his right to it.

This EAT decision was appealed to the Court of Appeal, which referred the case to the ECJ. The question being whether the burden should fall to the employer to assess worker status properly, face possible liabilities when employment ends, or whether it is for the employee to enforce their rights in a court or tribunal at the time, at the risk of job security.

One important point made by was that, as the Working Time Directive is a health and safety measure, and the burden of ensuring compliance should fall on the employer.

The Advocate General indicated that he would deliver his opinion on 8 June.

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