Read the background to the case [here]().

The claimant had been paid entirely on commission and his contract described him as self employed. His employment contract did not specify if he was entitled to paid leave and he was not paid for any leave taken in 13 years. After being dismissed when he reached 65, he brought claims for holiday pay to the ET. As a consequence of the proceedings, the ET ruled that he was a worker. The Court of Appeal asked the Attorney General 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.

The Attorney General ruled that 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. It was incompatible with EU law to require a worker to take annual leave before being able to ascertain whether he will be paid for it. In the Advocate General's view, to do otherwise would amount to requiring the worker to take active steps to secure the creation of an adequate facility for the exercise of the right to paid annual leave, which he considered to be incompatible with EU law. He also considered that it would make the right to paid leave excessively difficult to enforce.

Read the press release here