Mr King worked for The Sash Window Workshop Ltd (SWW) as a salesman for 13 years. During this time he received no salary, was only paid commission and was never paid for holidays or sickness absence.
SWW offered Mr King an employment contract after 9 years. The contract provided he would be entitled to paid annual leave. Mr King refused the contract. SWW terminated his employment when he reached 65 and Mr King brought claims for age discrimination and unpaid holiday pay in the employment tribunal.
Mr King’s contended that he had not taken his full holiday entitlement each year while working at SWW because it would have been unpaid. An employment tribunal found in Mr King’s favour.
The EAT upheld the SWW’s appeal against the tribunal’s decision to award Mr King pay in respect of leave accrued, but untaken, in previous years.
Mr King subsequently appealed to the Court of Appeal, which referred a number of questions to the ECJ.
The Advocate General’s opinion in respect of the questions can be summarised as follows:
- Employers must allow workers to exercise their right to take paid annual leave.
- If a worker does not take annual leave because their employer does not pay when leave is taken, the worker is entitled to claim that they have been prevented from exercising their right to paid leave.
- The amount due to a worker when their employment is terminated should cover the full period of employment, unless an adequate facility has been established. An adequate facility may be, like in Mr King’s case, a new contract within the employment term providing entitlement for paid annual leave.
The decision could have significant implications on gig economy employers, who may be required to pay large amounts to workers on termination in lieu of both unpaid holiday taken, as well as past holiday not taken as they would have been unpaid.
It will ultimately be for the UK courts to decide whether Mr King’s decision to turn down the employment contract should restrict his right to claim for unpaid holiday pay from the date he turned down the contract, or whether he will be entitled to claim unpaid holiday pay for the duration of his time at SSW.
To find out more about the issues raised in this post, or to discuss any queries regarding holiday entitlement get in touch with our expert employment team or call +44 (0) 161 829 2599.
The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by berg or any of its partners or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.