Justice – Photo © Yanchenko – Fotolia
(LUXEMBOURG) – It is incompatible with EU law to require a worker to take leave first before establishing whether he is entitled to be paid for it, EU Court of Justice Advocate General Tanchev made clear in an opinion Thursday.
Mr King, a sash-window salesman working for Sash Window Workshop Ltd (‘SWWL’) in 1999, was paid entirely on commission. He was not paid for leave taken and his contract had nothing in it regarding paid leave.
In 2008, SWWL offered Mr King an employee contract but Mr King elected to remain self-employed. He worked continuously for SWWL until dismissed with effect from his 65th birthday in October 2012.
Mr King took his dismissal to a UK employment tribunal. He was declared him a ‘worker’ for the purposes of UK law, which implemented the Working Time Directive.
Mr King’s action included claims for paid holidays, one of which related to paid leave to which he was entitled whilst working for SWWL but which the company had not provided.
The Court of Appeal of England and Wales asked the EU Court of Justice a number of questions on interpretation of the 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’.
Specifically, it asked 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.
In today’s Opinion, Advocate General Evgeni Tanchev considered 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.
First, the Advocate General recalls the numerous sources of European and International law which provide for workers’ entitlement to paid annual leave. In light of these sources, the Advocate General concludes that employers are to provide adequate facilities to workers for the exercise of this entitlement.
The Advocate General considered that such a facility may, for example, take the form of a specific contractual term concerning paid annual leave or a legally enforceable administrative procedure or similar. In his view, it is for the national courts to decide whether any such facility was provided. Second, the Advocate General takes the view that it would be inconsistent with the Directive to require workers like Mr King to make an application to a court or another body to compel an employer to create an adequate facility for the exercise of the right to paid annual leave. He considers that this conclusion is supported by the fact that Article 31 of the EU Charter of Fundamental Rights grants an unequivocal right to paid annual leave to every worker.
Further, the Court’s case law states that the existence of the right to paid annual leave is not to be subject to any preconditions whatsoever.
Next, the Advocate General considered that a worker, like Mr King, may rely on the Directive to secure payment in lieu of untaken leave when no facility has been made available by the employer for exercise of the right to paid annual leave, or if such a facility was only provided part way through the relationship.
In the Advocate General’s opinion, it goes beyond the discretion afforded to Member States in the implementation of the right to paid annual leave to permit employers to withhold creation of a facility for workers to exercise the right to paid annual leave and amounts to an unlawful precondition to the very existence of the right.
This means, in the Advocate General’s view, that if a worker does not take all or some of the annual leave to which he is entitled in the leave year, in circumstances where he would have done so but for the fact that the employer does not pay him for any period of leave he takes, the worker can claim that he is prevented from exercising his right to paid leave such that the right carries over until he has had such opportunity to exercise it.
Third, the Advocate General concludes that, upon termination of the employment relationship, a worker is entitled to an allowance in lieu of paid annual leave that has not been taken up until the date on which the employer made available to the worker an adequate facility for the exercise of the right to paid annual leave.
If this never occurred, then an allowance is due to cover the full period of employment until termination of the employment relationship.
It is for the national court to decide whether SWWL’s offer of an employment contract in 2008 to Mr King constituted an adequate facility for the exercise of the right to paid annual leave.
Finally, the Advocate General considered that it is incompatible with EU law to require a worker to take annual leave before being able to ascertain whether he will be paid for it. In the Advocate General’s view, to do otherwise would amount to requiring the worker to take active steps to secure the creation of an adequate facility for the exercise of the right to paid annual leave, which he considers to be incompatible with EU law. He also considers that it would make the right to paid leave excessively difficult to enforce.
