‘Self-employed’ UK window salesman entitled to claim in lieu of holiday wages he did not receive over 13-year period

This article is more than 3 years old

This article is more than 3 years old

Workers are entitled to paid leave and can claim compensation if they are not allowed to take their holidays, the EU’s highest court has been advised.

In an opinion about a case involving a UK window salesman, the advocate general of the European court of justice in Luxembourg reinforced employees’ rights.

A long-running legal challenge that concerned a claim brought by the salesman, known as Mr King, against Sash Window Workshop Limited, involved his employment contract, which did not specify if he was entitled to paid leave.

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King was dismissed when he reached the age of 65 but brought a compensation claim against the company for holiday pay he had never received over a 13-year period that amounted to more than £27,000.

The salesman had been paid entirely on commission and his contract described him as self employed. A UK employment tribunal subsequently found he should have been treated as a full-time worker.

In the decision issued yesterday, the ECJ advocate general, Evgeni Tanchev, said that employers had to provide “adequate facilities to workers” to enable them to take their paid annual leave.

Tanchev said: “A worker, like Mr King, may rely on [EU law] 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 ... 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.”

Opinions given by ECJ advocate generals are normally followed by the full court. A final decision will be delivered in the coming months.

The case is one of a series that have gone to the Luxembourg court to establish whether businesses operating in the “gig economy” are depriving employees of benefits to which they should be entitled by reclassifying workers as self employed.

A final court ruling confirming the advance opinion could impose substantial costs on many UK firms that have operated similar employment practices.











