AG opinion - employers must enable leave to be taken
Monday 26th June 2017
The Advocate General has given his opinion in the case of King v The Sash Window Workshop Ltd.
Mr King began working for SWWL in June 1999 as a salesman on a “self-employed commission only contract”, which was silent on holiday entitlement. In 2008, he was offered an employment contract, including a right to paid annual leave, but he preferred to remain self-employed. Mr King was dismissed in October 2012 when he turned 65. He was not paid for any annual leave taken.
Mr King’s claims for age discrimination and holiday pay were successful in the ET, where he was held to be a worker. The ET awarded holiday pay for the days taken and for untaken days accrued since June 1999.
SWWL successfully appealed to the EAT regarding the holiday pay awarded for accrued but untaken leave. The EAT considered that the ET had failed to make any findings of fact supporting the conclusion that Mr King had been unable to take his accrued leave as a result of circumstances beyond his control, meaning any entitlement to holiday expired at the end of the relevant leave year.
Mr King appealed to the CA, which made a referral to the ECJ. The AG’s opinion is that employers must provide “adequate facilities” enabling workers to exercise their right to paid annual leave. Requiring workers to initiate proceedings compelling employers to create such facilities or requiring them to take leave before they can ascertain whether or not they will be paid, would be an “impermissible pre-condition” on the entitlement to paid annual leave.
While the AG noted the case law allowing limits on carrying over leave, this is only permissible when employers have made adequate facilities available for workers to exercise their right. If they have not done so, a worker is entitled to payment in lieu of all accrued but untaken holiday.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.