In C King v The Sash Window Workshop Ltd  EUECJ C214/16 the Advocate General of the European Court’s preliminary ruling indicates that workers entitlement to annual paid leave will carry over indefinitely, until such time they have been given the opportunity to take it.
It has long been understood that almost all workers are legally entitled to annual paid leave, but UK law places a restriction on how long annual leave can carry over.
- Mr King was a self employed worker for The Sash Window Workshop Limited (The defendent) and was paid on a commission only basis
- He was offered an employment contract after a number of years working for the company but decided to remain self employed
- Both parties agreed that he was not an employee
- He was dismissed on his 65th birthday and his case was heard in the Employment Tribunal and Court of Appeal
He won his case on age discriminatio.
It was held that he was entitiled to a payment for unoaid leave not taken in his final holiday year
He was also entitled to payment for (unpaid) holiday which he had taken during his time working for the defendent
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. This last point was the subject of the CJEU referral as, under UK law, this untaken leave would potentially be subject to a time restriction.
- The CJEU determined 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.