Employment Essentials: November 2017's Top 5

1) Workers wrongly classed as self-employed can claim years of unpaid & untaken holiday

It is now well established that the prohibition on carry-over of untaken annual leave contained in the Working Time Regulations 1998 (WTR) does not apply where a worker is 'prevented' from taking their annual leave due to sickness absence or family related leave. Is a worker also 'prevented' from taking their annual leave in circumstances where an employer has wrongly classed an individual as an independent contractor, therefore denying any right to take paid holiday? Does carry-over equally apply in such cases and if so how much can be carried over? These are questions the Court of Justice of the European Union (CJEU) has considered in Sash Window Workshop Ltd v King.

Mr King's unpaid holiday claims

Mr King worked for Sash Windows as a self-employed commission-only salesman from June 1999. While Mr King did take some holiday throughout his years of service, he was never paid for this. When Sash Windows terminated his engagement in October 2012, Mr King successfully claimed holiday pay before an employment tribunal, which accepted that he was a 'worker' for the purposes of the WTR 1998.

In particular, Mr King as a worker, was entitled to holiday pay for:

Holiday Pay 1: Holiday accrued but untaken in the final leave year (2012/13); Holiday Pay 2: Holiday actually taken between 1999 and 2012 but unpaid; and Holiday Pay 3: Holiday accrued but untaken throughout his employment period (1999-2012), being 24.15 weeks The EAT allowed Sash Windows' appeal on the inclusion of Holiday Pay 3, holding that the tribunal had failed to make findings of fact to support its conclusion that Mr King was prevented from taking his annual leave for reasons beyond his control. There was therefore no basis for departing from the usual position under the WTR that entitlement to leave expires at the end of the relevant leave year. Mr King appealed to the Court of Appeal, who made a reference to the CJEU.

CJEU ruling

On 29 November, the CJEU ruled as follows:

Is a worker 'prevented' from taking annual leave if they are wrongly categorised as self-employed? Yes - a worker is 'prevented' from taking their annual leave in circumstances where an employer has wrongly classed an individual as an independent contractor, therefore denying any right to take paid holiday. The right to take annual leave and to payment for that leave are two aspects of a single right. Where an employer denies a worker is entitled to paid leave, that will deter the worker from taking leave, thereby 'preventing' them from taking the leave. Does carry over apply as it does for those 'prevented' from taking annul leave due to ill-health and if so how much can be carried over? Yes, carry-over must be allowed and is not limited to a period of say 15 or 18 months as has been held by the courts in relation to those 'prevented' from taking leave due to ill-health. The CJEU distinguished ill-heath cases which took into account not only the protection of...