Alan McCormack | Senior Associate

Opinion from Court of Justice on Annual Leave Entitlement Case

An Advocate General of the Court of Justice of the European Union has given his opinion in an employment case referred to it by a UK court.

Case Background

The case concerned the right to paid annual leave and involved Mr King, who worked as a salesman for a company that installs windows and doors. He worked continuously for the company from 1999 until he was dismissed when he reached the age of 65, in October 2012.

During his time with the company he was paid by commission indexed to the sales that he brought in. He was not paid for leave taken and his contract was silent on the subject. In 2008, the company offered him an employee contract but Mr King apparently elected to remain self-employed.

Following his dismissal, Mr King took the company to an employment tribunal, and as a consequence of those proceedings he was found to be a ‘worker’ for the purposes of UK law, which implemented the Working Time Directive. His tribunal case also included a claim for paid annual leave that Mr King was entitled to for the period he worked for the company but which the company did not provide.

Clarification Sought on Interpretation of Working Time Directive

The case reached the Court of Appeal of England and Wales, which asked the Court of Justice for clarification on a number of questions relating to the interpretation of the Working Time Directive, which provides that ‘Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks’.

In particular, the Court of Appeal sought clarification on whether, in circumstances where there is a dispute between a worker and employer as to whether the worker is entitled to annual leave with pay, it is compatible with EU law if the worker has to take leave first before being able to establish whether he is entitled to be paid.

Advocate General’s Opinion

Advocate General Evgeni Tanchev has now given his opinion on the matter, which is that it is incompatible with EU law to require a worker to take leave first before being able to establish whether he is entitled to be paid for it.

In circumstances where an employer has not provided a worker with paid leave, the right to paid leave carries over until he has the opportunity to exercise it, and on termination of employment the worker has the right to payment in lieu of leave that remains outstanding.

It is important to highlight that the Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases they are responsible for. The Judges of the Court are now considering the case and will give their judgment at a later date.

However, this judgment will just relate to the question about the interpretation of the Working Time Directive. It will then be up to the Court of Appeal to reach a judgment on the case in accordance with the Court of Justice’s decision.

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Alan McCormack

Alan McCormack

Employment Law Team

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