King v Sash Window Workshop Ltd
A worker who was prevented from taking paid annual leave because the employer refused to pay for it can carry over the untaken leave until the end of the employment relationship.
Facts
Mr King worked for Sash Window Workshop for 13 years, under a contract which described him as self employed and paid him only commission. He took some unpaid leave, but was never paid for it. When his engagement ended, he claimed holiday pay for the whole period, arguing that he was a worker. The employment tribunal held that he was a worker, and the question was whether he could claim payment for leave which he had not taken in earlier years.
Legal principle
The Court of Justice held that a worker must be able to carry over and accumulate unexercised rights to paid annual leave where he was prevented from exercising them because the employer refused to pay for that leave. Article 7 of the Working Time Directive does not allow a worker to be required to take leave first before establishing whether he is entitled to be paid for it. Where the employer has not allowed the worker to exercise his right to paid leave, the right is carried over until the end of the employment, when the worker is entitled to payment in lieu of all the untaken leave.
Related cases on whistleblowing, working time and pay
- British Airways plc v Williams [2012] UKSC 43, [2012] ICR 1375
- Chesterton Global Ltd v Nurmohamed [2017] EWCA Civ 979, [2018] ICR 731
- Chief Constable of the Police Service of Northern Ireland v Agnew [2023] UKSC 33
- Federación de Servicios de Comisiones Obreras v Deutsche Bank SAE Case C-55/18, EU:C:2019:402
- Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL Case C-266/14, EU:C:2015:578
- Gilham v Ministry of Justice [2019] UKSC 44, [2019] 1 WLR 5905
- Harpur Trust v Brazel [2022] UKSC 21
- Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436, [2018] ICR 1850
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