In a ruling delivered on Wednesday 29 November (Case C-214/16), the European Court of Justice argued that a worker must be able to carry over and accumulate unexercised rights to paid annual leave when an employer does not put that worker in a position in which he is able to exercise his right to paid annual leave.
Mr King from the United Kingdom worked for the door and window installation company, SWWL, on the basis of a ‘self - employed commission - only contract’ from 1999 until 2012. Under that contract, Mr King was unpaid when he took annual leave. In 2012, Mr King sought to recover payment for his annual leave with a claim made to the competent Employment Tribunal.
The Employment Tribunal found that Mr King was a ‘worker’ within the meaning of UK legislation transposing certain aspects of the 2003/88 Working Time Directive and that he was entitled to payment in lieu of leave.
Hearing the case on appeal by SWWL, the Court of Appeal of England and Wales asked the Court of Justice whether 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.
In its decision, the ECJ draws on the reasons outlined by Advocate General Tanchev and responds in the negative (see EUROPE 11805). According to the latter, the right of Mr King to have paid annual leave is set out in the Charter of Fundamental Rights of the European Union. However, this right is is not guaranteed due to the dissuasive practices of his employer and the obligation of taking unpaid holidays before there is any possibility of making an appeal to obtain paid annual leave.
The ECJ concludes that EU law precludes national provisions or practices that 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.
However, in order to protect the employer from the risk that a worker will accumulate periods of absence of too great a length, and from the difficulties those periods might entail with regard to the organisation of work, EU law does not preclude limiting the accumulation of entitlements to paid annual leave to a carry-over period of 15 months.
In the present case, protection of the employer’s interests does not seem strictly necessary, particularly since the assessment of the rights of a worker such as Mr King to paid annual leave is not connected to a situation in which his employer was faced with periods of his absence. On the contrary, the employer was able to benefit from the fact that Mr King did not interrupt his professional activity over a number of years.
The Court therefore finds that unlike in a situation of accumulation of entitlement to paid annual leave by a worker who was unfit for work due to sickness, an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences.
To accept that Mr King’s acquired entitlement to paid annual leave could be extinguished would amount to validating conduct by which an employer was unjustly enriched to the detriment of the purpose of that directive, which is that there should be due regard for workers’ health. (Original version in French by Mathieu Bion)