In an opinion issued on Thursday 8 June (Case C-214/16), European General Court Advocate General Evgeni Tanchev believes 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.
British national Mr King worked from 1999 to 2012 as a salesman for the Sash Window Workshop Ltd (‘SWWL’), a company that provides and installs windows and doors. He was paid by commission indexed to the sales that he brought in. He was not paid for leave taken and his contract was silent on the question of paid leave.
Mr King worked continuously for SWWL until he was dismissed in October 2012. In December 2012, Mr King brought proceedings against SWWL in respect of his dismissal before an employment tribunal requesting payment in lieu of leave that was never taken.
Under the EU working time directive (2003/88), member states must take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks.
The Court of Appeal of England and Wales now asked the European General Court of Justice a number of questions on the interpretation of the Directive, and in his opinion, the Advocate General says that employers are required to introduce an appropriate mechanism to enable workers to exercise their right to paid leave. The mechanism may take the form of specific clauses in the contract or a legally enforceable administrative procedure or similar. The directive does not require a worker like Mr King to go to court to force an employer to set up such a mechanism.
Moreover, the Advocate General says that a worker 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.
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.
Therefore, 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.
Tanchev says that upon termination of employment, 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.
In 2008, SWWL offered Mr King a contract as an employee, which he refused, preferring to continue to be self-employed. It is now for the British court to decide whether the work contract offered to Mr King is an appropriate mechanism to allow him to exercise his right to annual paid leave.
But if the employer has never set up a mechanism for this purpose, the worker is entitled to financial compensation covering the full period of work at the company, until the end of the working relationship. (Original version in French by Mathieu Bion)