The Worker and the 13 years of untaken annual leave

Now we all from time to time are in positions where, for one reason or another, we are unable to use up all of our annual leave within the allocated time.

For such a time which is so precious to anyone who still looks back at the school days of half term and summer holidays with a glimpse of longing, this brief article focuses on an opinion given by the Advocate-General of the European Court in June this year concerning a UK worker who had a claim for 13 year’s worth of back-dated holiday pay.

King v The Sash Window Workshop (TSWW)

Mr King worked for TSWW and was paid entirely on commission. He was (incorrectly) treated as self-employed and was therefore not seen as being entitled to paid leave.

The nature of his status meant that taking annual leave would have a detrimental financial impact; so he rarely took it.

TSWW then terminated his contract when he reached 65 years old. In return, Mr King successfully brought a claim for age discrimination and pay for the holiday he had taken on the basis that he was a “worker” and not self-employed. Additionally, he claimed pay in lieu of the holiday entitlement which he had not taken throughout the whole of his 13 year employment period.

The full article (link below) concludes by reiterating the Advocate-General’s Opinion, which is that businesses whose models do not provide certainty as to worker status (particularly those in the so-called gig economy) may face similar claims with serious consequences.

These forms of employment are becoming ever more prevalent because of the provision of services via digital technologies in the age of the internet. Who should bear the risk of non-compliance with the right to paid annual leave when there is no facility in the employment relationship for its exercise, the employer or the workers concerned? Is it compatible with the EU right to paid annual leave for Member State law to first oblige a worker to take leave, before being able to ascertain if the leave will be paid?”