The Court of Appeal has held that a worker who took leave which the employer failed to pay because it saw him as ‘self-employed’ could carry the right to paid leave forward indefinitely.
In King v Sash Window Workshop, 2017, the European Court had held there could be unlimited carry-forward of paid leave in a case where leave was not taken because the employer refused to remunerate it (as regards the four weeks per year required by EU law).
Now in Smith v Pimlico Plumbers www.bailii.org/ew/cases/EWCA/Civ/2022/70.html the Court of Appeal has held the same applied (again as regards four weeks per year) to leave the claimant had taken in the past but was not paid for, because the employer did not recognise he was a worker entitled to paid leave.
This is particularly important where an employer currently categorises certain people as ‘self-employed’, with no employment rights, but they may subsequently be held by a tribunal to be ‘workers’ entitled to paid leave. The tribunal ruling may have very significant financial consequences as regards past leave.