Holiday Pay Claims

The CJEU in King v Sash Windows considered whether a worker who does not take paid annual holiday, because the employer refuses to pay, carries over his entitlement to paid holiday or whether it is lost at the end of each holiday year.

Conley King was believed to be working for Sash Windows on a self-employed basis, but was later found to have workers’ rights, thus entitling him to 5.6 weeks’ paid annual leave.

Sash Windows argued that under the Working Time Regulations 1998, if paid holiday is not taken in a leave year then it is lost. The CJEU disagreed; insofar as the UK Regulations say that the worker loses the right, they are incompatible with EU law and must be disregarded. A worker cannot be stopped from bringing a claim just because a new holiday year starts.

Mr King brought a claim for £27,000 of holiday pay he says he should have received for the years 1999 to 2012, the CJEU decided there was no time limit for the claim and therefore Mr King was allowed to claim payment for the entire length of his employment.

The head of the IWGB trade union, Dr Moyer-Lee, said the “bombshell judgement” was a “game changer for the so-called ‘gig economy'”. Self-employed contractors who are in fact workers (such as Uber and Pimlico Plumbers) may therefore be faced with claims for back holiday pay from as early as 1996 when the original Working Time Directive came into force.