The right to paid holiday can carry over indefinitely

King v The Sash Window Workshop [Advocate General] | 2017

Mr K was a salesman for the Sash Workshop from June 1999.  He was paid commission only and was not paid for any annual leave which he took.  In 2008, Mr K was offered a contract of employment which provided for the right to paid holiday but which Mr K refused. Mr K’s employment ended in October 2012, when he reached 65 years old.

Mr K brought claims, and was awarded compensation, for accrued but untaken holiday in the final year of his employment and holiday which he took but for which he was not paid in the 13 years he had worked for the Sash Workshop.  Mr K also claimed for and was awarded pay in relation to holiday which he had not taken during the same period.

The Sash Workshop appealed the decision relating to pay for holiday which he had not taken to the EAT who in turn raised various questions with the European Court.

Before the European Court can give its decision, the Advocate General must give his preliminary decision.  The Advocate General has concluded, in this case, that it:

1. would be contrary to the right to paid holiday under European law if an individual must take leave before they are able to bring a claim for pay in circumstances where there was no provision to be paid for holiday.
2. The right to paid holiday carried over indefinitely unless and until the facility to take paid holiday is in place.

In short, the Advocate General concluded that Mr K was entitled to payment for holiday which he did not take and was discouraged from taking because he would not be paid for dating right back to when he started in 1999.

This is an Advocate General decision and, as things stand, not binding.  This said, it is rare for the European Court to reach a different decision from that given by the Advocate General and, whilst it may have little practical consequence as few employers are likely to have not provided for paid holiday at all, the decision does serve to remind organisations of the increasing trend to protect the right to paid holiday which is being seen in many other cases.