In C King v The Sash Window Workshop Ltd [2017] EUECJ C214/16 the European Court has issued its preliminary ruling that a worker is entitled to payment for holiday not taken and where the opportunity to take paid leave has been denied, entitlement continues until they have been given the opportunity to take it.

The decision by the European Court follows the earlier comments on the case by the Advocate General of the European Court.

It has long been understood that almost all workers are legally entitled to paid annual leave, but UK law places a restriction on how long annual leave can carry over.

  • Mr King was a self-employed worker for the defendant and was paid commission only
  • After a number of years he was offered an employment contract, but elected to remain self-employed
  • The parties both agreed that he was not an employee
  • He was dismissed on his 65 birthday and his case was heard in the Employment Tribunal and Court of Appeal:
    • He won his case on age discrimination
    • He was entitled to payment for paid leave untaken in his final holiday year
    • He was entitled to payment for (unpaid) holiday which he had taken during his time with the defendant
  • Mr King also claimed additional pay relating to leave he was entitled to during his time with the defendant but which he did not take, as the defendant indicated he would not be paid for it.

The last point was referred by the Court of Appeal to the CJEU as, under UK law, this untaken leave would potentially be subject to a time restriction.

  • The CJEU determined that the worker does not have to have taken annual leave in order to be allowed to dispute whether or not it should be paid leave.
  • That the right to paid annual leave can only be subject to a time limit if the worker has had adequate facility to exercise his right.
  • If the worker does not take annual leave because the ‘employer’ refuses to pay him, the worker can claim he is prevented from exercising his right to paid leave.
  • This means the right to paid leave carries over until such time as he has had a chance to exercise it.

The Court of Appeal will now determine what costs should be paid to Mr King in settlement of his claim.


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External link: C King v The Sash Window Workshop Ltd [2017] EUECJ C214/16


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