Holiday pay for workers – King v The Sash Window Workshop Ltd

“”An employer that does not allow a worker to exercise his right to annual leave must bear the consequences.” So said the ECJ in its ruling yesterday, 29 November 2017, in King v Sash Window Workshop Ltd.

Mr King – a commission-based salesman did not receive holiday pay for 13 years. He argued he could not afford to take holiday as SWW Ltd’ did not give him paid holiday as he was “self-employed”. The ECJ confirmed K’s “worker” status meant he was entitled to be compensated for holiday dating back to the beginning of his employment in 1999.

This is a fundamental departure from the Working Time Regulations which currently provide that if untaken statutory holiday expires at the end of each holiday year. The only exception being where a worker is off sick and has been unable to take holiday because of sickness absence, but even then the carry over period is not indefinite but capped.

Employers could now face significant claims for back pay from those seeking to argue that they have “worker” rather than “self-employed” status and have been unable to take holiday for reasons beyond their control. It will be no excuse for employers to argue they were ignorant of their status or got it wrong. Employers should not delay then in revisiting any contracts with “self-employed” staff and taking advice on their status.

The case now returns to the UK’s Court of Appeal, but Christmas may have come early for many “ self-employed/ workers”!

Please contact Jackie Cuneen or Toni Hudson if you would like more information about the issues raised in this article or any aspect of employment law.