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:
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?
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?
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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The Court of Appeal has held that where a contract of employment lacks a provision for when notice of termination takes effect, it is effective from when the employee personally takes delivery of the letter containing notice.
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