Europe: Statutory holiday pay claims- EU Advocate-General publishes opinion on workers denied paid holiday

The ECJ Advocate-General has given his opinion in King v The Sash Window Workshop that employers must make ‘adequate facilities’ (eg, contractual rights or administrative procedures) available to workers in order that they can take annual leave. If those facilities are not made available then workers can claim payment in respect of the 4 weeks' EU-derived statutory annual leave up to the point they are made available or, if they are not made available, up to the termination of their employment, with no limits on carryover.

In his view, any permitted temporal and other restrictions on exercise of the right to paid annual leave set out in national law cannot apply to leave accrued prior to those facilities being made available. This could be very significant for gig economy employers and others who engage individuals with self-employed status but whom may well succeed in establishing worker status. If the opinion is followed by the ECJ, such employers could be faced with a significant financial liability for unpaid holiday pay.