CJEU: Carry over & accumulate unexercised rights to paid annual leave when worker unable to accumulate unexercised rights

30 Nov 2017 12:20 PM

Mr Conley King worked for The Sash Window Workshop (‘SWWL’) on the basis of a ‘self-employed commission-only contract’ from 1999 until he retired in 2012. Under that contract, Mr King was paid on a commission-only basis. When he took annual leave, it was unpaid.

Upon termination of his employment relationship, Mr King sought to recover payment for his annual leave — taken and not paid, as well as not taken — for the entire period of his engagement. SWWL rejected the claim made by Mr King who therefore made a claim to the competent Employment Tribunal.

At the conclusion of those proceedings, the Employment Tribunal found that Mr King was a ‘worker’ within the meaning of UK legislation transposing the Working Time Directive1 and that he was entitled to payment in lieu of leave.

Hearing the case on appeal, the Court of Appeal of England and Wales asked the Court of Justice several questions concerning the interpretation of the Directive. In particular, it asked whether, in the case of 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.

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