‘Landmark’ EU ruling: gig workers have right to claim annual leave for untaken holidays

01 December 2017

In a landmark ruling by the European Court of Justice (ECJ) earlier this week, a window salesman misclassified as ‘self employed’ by his employer was awarded 13 years worth of annual leave payments.

The claimant, Mr King, initially challenged his employment status in the UK courts, where a tribunal found that he had been misclassified as ‘self employed’ by his employer The Sash Window Workshop Limited and was legally defined as a ‘worker’ with fundamental employment rights including to minimum wage and holiday pay.

Although the claimant had not taken unpaid leave in his 13 years working at the company, the ECJ agreed that he is owed back pay for the annual leave he should have been able to access.

In its judgment, the court 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.

“The employer was able to benefit from the fact that Mr King did not interrupt his professional activity,” it added.

With significant implications for UK gig economy workers, the ECJ also ruled that there is no limit on the number of years of unpaid holiday pay that can be claimed by workers.

“In the absence of any national statutory provision establishing a limit to the carryover of leave in accordance with the requirements of EU law, to accept that the worker’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,” the judgment stated.

The court’s decision has reignited debate around the importance of EU law in protecting workers’ rights. Earlier this month, the Conservative Party narrowly voted down a motion by the Labour Party to preserve employment law derived from the EU in primary legislation. Building it into statute in this way would have meant that the government is forced to call a democratic parliamentary vote before it can change employment laws derived from the EU. Further, there is still the question of how vulnerable case law precedents – like this week’s decision – will be following Brexit. How many of these successes could later be overturned in UK courts after European courts cease to have influence on them?

These questions were discussed at our Post-Brexit Employment Rights and Trade Deals conference in Liverpool this week, for which papers are now available for download. But the EU’s influence is much broader than providing enhanced rights for workers, with many on the left highlighting how EU structures have upheld neoliberal ideologies which have led to a mass decline in wages and collective bargaining coverage across Europe.

The anti-worker influence of the EU is discussed at length in our two new publications The Legacy of Thatcherism in European Labour Relations: The Impact of the Politics of Neo-Liberalism and Austerity on Collective Bargaining in a Fragmenting Europe – which reports on the findings of a wide-ranging study across several EU members states on the impact of EU policy following the global financial crisis; and Europe, the EU and Britain: Workers’ Rights and Economic Democracy, which reports on an international seminar held at Marx Memorial Library.