Advocate General Tanchev considers that 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. In circumstances where an employer has not provided a worker with paid leave, the right to paid leave carries over until he has the opportunity to exercise it and on termination of employment the worker has the right to payment in lieu of leave that remains outstanding.

This long-running case was referred to the CJEU by the Court of Appeal of England and Wales. Mr King started working as a salesman for the Sash Window Workshop Ltd in 1999. 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. In 2008, SWWL offered Mr King an employee contract but Mr King elected to remain self-employed. Mr King worked continuously for SWWL until he was dismissed with effect from his 65th birthday in October 2012. Over the 13 year period, the outstanding holiday pay amounts to some £27,000 (around €30,000+). 

In December 2012, Mr King brought proceedings against SWWL in respect of his dismissal before an employment tribunal in the UK. As a consequence of those proceedings, Mr King was found to be a ‘worker’ for the purposes of UK law, which implemented the Working Time Directive. Mr King’s action also included claims for paid holidays. One of these claims related to paid leave to which Mr King was entitled whilst working for SWWL but which that company did not provide. 

After progressing through the E&W tribunal and appeal system, the Court of Appeal specifically asked the CJEU whether, in circumstances where there is 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. Advocate General Tanchev has concluded that it is incompatible on the following grounds:

* employers are to provide adequate facilities to workers for the exercise of this entitlement

* Article 31 of the EU Charter of Fundamental Rights grants an unequivocal right to paid annual leave to every worker. Further, the Court’s case law states that the existence of the right to paid annual leave is not to be subject to any preconditions whatsoever

* a worker, like Mr King, 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 (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)

The case will proceed to a full hearing of the CJEU before returning to the Court of Appeal in England and Wales: http://curia.europa.eu/juris/document/document.jsf?text=&docid=191322&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=768752