The issue of holiday pay has been back in the ECJ, with the Court considering the case of King v The Sash Window Workshop Ltd and another.

In that case, the issue had arisen as to whether Mr King, a worker who had been mistakenly classified as self-employed, should be able to carry over holiday that he had been prevented from taking as a result of the misclassification.

The EAT held that a worker who is unable or unwilling to take holiday due to reasons beyond their control (extending beyond sickness) should be allowed to carry it over to the next leave year. The question of whether Mr King was in fact prevented from taking his leave was referred back to the Employment Tribunal.

The Court of Appeal made reference to the ECJ to answer the key issues in the case, specifically:

  1. Under the Working Time Regulations, does an individual have to take unpaid leave before being able to prove that they are entitled to pay for this?
  2. Where the worker doesn't take leave they are entitled to, can the leave be carried over when the worker is prevented from exercising their right?
  3. If the leave does carry over, is this indefinite or for a limited period as in sickness cases?

The hearing took place on Wednesday and the judgment will be hotly anticipated, for a number of reasons. It has the potential to extend the right to carry over beyond incidences of sick leave. It is also interesting on its facts, in the context of the rise of the gig economy and the question of employment status.

One interesting point made by the European Commission was that, as the Working Time Directive is a health and safety measure, the burden of ensuring compliance should fall on the employer. As such, there is no burden on the employee to actually request carry-over. For updates on the decision, watch this space.

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