Where an employer had not allowed a worker paid leave because he was considered ‘self-employed’, the worker could now claim against the employer back to when he started employment in 1999.
The EU Court of Justice (ECJ) decision in King v Sash Window Workshop www.bailii.org is important particularly where an employer currently categorises certain people as fully ‘self-employed’, but they may subsequently be held by a tribunal to be ‘workers’ entitled to paid leave under the Working Time Regulations.
The decision suggests that such a recategorisation may have very significant financial consequences, because as regards the four weeks paid leave allowed under EU law the workers’ claim may go back many years.
The claimant in this case was a salesman under a ‘self-employed commission-only contract’, and so was not thought to be entitled to any paid holiday. He was subsequently held to be a ‘worker’ so as to be entitled to paid leave under the Working Time Regulations.
The ECJ held that in these circumstances there should not be a limit on how long his entitlement to paid leave could be carried forward. It said national law could not prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.
The ECJ distinguished paid leave of those absent on long-term sick leave, where some limit on carry forward was allowed.
At one point the claimant had been offered an employment contract with a right to paid annual leave, but chose to remain ‘self-employed’. The ECJ said this did not matter.