EU advocate general backs claim for retrospective holiday pay

Europe’s highest court has indicated that workers should be entitled to take paid leave and can claim compensation even if they are not considered an ‘employee’.

A preliminary opinion by the advocate general at the Court of Justice of the European Union said employers must provide ‘adequate facilities’ for workers to exercise their entitled for paid annual leave.

The case centred on a British window salesman, Mr King, who worked for a company called the Sash Window Workshop Ltd (SWWL) between 1999 and 2008.

During his time at the company his contract was silent on the issue of paid leave and King did not take paid leave. He was offered an employee contract in 2008 but declined the offer electing to stay self-employed. He was dismissed on his 65^th birthday in 2012.

After his dismissal he took SWWL to the employment tribunal which found that he was a ‘worker’ under English law. King also claimed he was entitled to retrospective paid leave for the accrued and untaken holiday.

The Court of Appeal asked the CJEU to consider whether member states need to ensure that every worker is paid annual leave of at least four weeks.

In today’s opinion advocate general Evgeny Tanchev wrote: '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’.

One of the questions asked of the CJEU was whether a worker has to take leave before being able to establish whether he or she is entitled to be paid. The opinion said this would be incompatible with EU law.

The CJEU added that it would be up to the Court of Appeal to determine whether SWWL’s offer of an employment contract in 2008 constituted an ‘adequate facility’ for the exercise of right to paid annual leave. 

Anthony Purvis, partner at London firm Waterfront Solicitors, said: ‘King argued that he had been denied such holiday for some time and should receive a payment in respect of several years of accrued but untaken holiday. Advocate general Tanchev has agreed in principle. The opinion fits the theme of recent European case law in this area, which is to hold the principle of minimum paid annual leave as highly important and to be protected even though in this case King had not considered himself entitled to holiday and had not taken it or even tried to take it.’

He added: ‘Once the decision of the CJEU is known it will be of real interest to those who have been denied holiday pay, especially if they have been incorrectly characterised as self-employed.’

Advocate general opinions are not binding on the CJEU. However, the court follows the opinion in most circumstances. 

The case is likely to throw the spotlight on various disputes surrounding the ‘gig economy’. The GMB trade union has started legal action against courier company DX and taxi company Addison Lee claiming that delivery people and drivers should be granted full employment rights.