Does a worker’s paid holiday entitlement carry over to subsequent years if they do not take holiday because their employer refuses to pay them?
Yes, stated the Advocate General of the CJEU in a non-binding opinion in King v The Sash Window Workshop.
Where a worker does not use their entitlement to paid holiday because they would not be paid by their employer, the worker can claim he was prevented from exercising his right to such paid leave. The right then carries over until the worker has had the opportunity to exercise it – in this case on termination of employment.
The worker does not have to ask to take his leave first before being able to establish whether he is entitled to be paid for it, because the risk of not being paid for the leave would be a deterrent to taking it.
The payment in lieu for untaken holiday entitlement should cover the full period of employment until termination of the employment relationship (note: the three month limit issue in holiday pay claims, most recently seen in Fulton v Bear Scotland, was not considered here).
The CJEU normally, but not invariably, follows the opinion of the Advocate General.
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