Advocate General Tanchev said: “In circumstances 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.”
The case involved a salesman called Mr King who worked for Sash Windows Workshop Ltd.
He was paid commission on sales but didn’t receive holiday pay and his contract made no mention of holiday entitlement. He was dismissed with effect from his 65th birthday in 2012.
Mr King took legal action in relation to his dismissal and included a claim for £27,000 holiday pay dating back over the course of his employment. During the proceedings, the Employment Tribunal found that he was a worker for the purposes of UK law, which implemented the Working Time Directive.
The case went all the way to the Court of Appeal, which asked the European Court of Justice for guidance on the interpretation of the directive which states that “Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks”.
Advocate General Tanchev has given a preliminary opinion on the issue stating that employers are required to provide “adequate facilities to workers for the exercise” of their holiday entitlement.
He then added: “It is incompatible with EU law to require a worker to take leave first before being able to establish whether he is entitled to be paid for it.
“If a worker does not take all or some of the annual leave to which he is entitled in the leave year, in circumstances where he would have done so but for the fact that the employer does not pay him for any period of leave he takes, the worker can claim that he is prevented from exercising his right to paid leave such that the right carries over until he has had such opportunity to exercise it.
“Upon termination of the employment relationship, a worker is entitled to an allowance in lieu of paid annual leave that has not been taken up until the date on which the employer made available to the worker an adequate facility for the exercise of the right to paid annual leave.”
The Advocate General’s opinion is not binding but it is usually followed by the European Court of Justice, which will give its ruling over the legal principles, but not the case itself, over the next few months.
We shall keep clients informed of developments.
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