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UK window salesman can claim for 13 YEARS of unpaid holiday, European court rules

The ruling by the European Court of Justice could have far reaching implications (JOHN THYS/AFP/Getty Images)

A window salesman from Britain can claim for 13 YEARS of unpaid holiday time, Europe’s top court has ruled.

Conley King, who worked as a commission-based, self-employed sales rep, argued that upon leaving The Sash Window Workshop company he was entitled to £27,000 in back pay for unclaimed holiday.

The landmark employment ruling could have far reaching implications for workers in the gig economy, many of whom are classed by the “employers” as self-employed and as such, do not necessarily qualify for paid leave.

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King worked for the company between 1999 and 2012. After he retired, a UK employment tribunal ruled that he should have been classified as a full time worker.

He also sought to get the money he felt he was owed for not taking any paid holiday during his time with the firm.

When the case went to the Employment Appeal Tribunal, it said there was no evidence that King gave any notice of his intention to take holiday that was then refused.

However, he then took the case to the Court of Appeal, at which point it was referred to the ECJ.

The gig economy has seen a raft of legal challenges from workers seeking to clarify their rights (AP Photo/Frank Augstein)

Now the ECJ has ruled in his favour, basically concluding EU law allowed him to claim payment for the entire length of his employment and that there was no time limit for his claim.

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It said: “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.

“Even if it were proved, the fact that Sash WW considered, wrongly, that Mr King was not entitled to paid annual leave is irrelevant. Indeed, it is for the employer to seek all information regarding his obligations in that regard.

“It follows… 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.”

Employment lawyers said the judgment could have a big impact on the gig economy which has been hit by a series of legal challenges from workers seeking clarification of their rights.

Nicola Ihnatowicz, employment partner at law firm Trowers & Hamlins, said: “Employers who find that those they have always regarded as self-employed contractors actually have worker status will now potentially be faced with a significant financial liability for unpaid holiday pay.”

Dr Jason Moyer-Lee, the general secretary of the Independent Workers’ Union of Great Britain, said: “Today’s bombshell judgment from the court of justice of the European Union is a game changer for the so-called gig economy.”

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The Sash Window Workshop said at no point was King “prevented by us from taking any time off for holiday”.

The UK Court of Appeal will now reconsider the application from King after clarification from the ECJ under the terms of the EU’s Working Time Directive.

How long after Brexit UK courts will have to take into account European court positions and what areas of law will be relevant is not clear.