In a recent case the European Court of Justice (ECJ) was faced with considering whether a deceased worker retains an entitlement to pay in lieu of untaken holiday under the Working Time Directive.
Not something that most of us would have considered before but it is an interesting case!
The Working Time Directive states that workers must be entitled to at least four weeks’ holiday each year and we all know that when workers leave employment, they are entitled to a payment in lieu of untaken statutory accrued holidays.
Although this case (Bollacke v K + K Klaas & Kock B.V. & Co) concerned a worker in Germany whose widow brought a claim in the German courts seeking payment for unpaid holiday pay, it is likely that the outcome of this case will be considered as a setting a precedent in the UK.
In this particular case, at the time of his death, Mr Bollacke had accrued 140.5 days untaken holiday and his employer refused to pay his widow the accrued entitlement. When she made a claim to the tribunal it was rejected but on appeal it was referred to the ECJ who determined that:
‘A worker’s entitlement to paid annual leave is a particularly important principle of European law from which there may be no derogation ……… and that it has already been established that, where it is impossible for a worker to take holiday because the employment relationship has been terminated, the worker is entitled to a payment in lieu’.
In light of this, the ECJ decided that a worker’s death cannot remove their right to a payment in lieu of untaken holiday stating that a payment in lieu is “essential to ensure the effectiveness of the entitlement to paid annual leave” under the Directive.
What is also very important to consider is that they went on to say that receipt of the payment in lieu is not dependent on the interested party making an application. In other words there is an obligation or expectation placed on the employer to ensure that the payment is made whether or not a request is made.
Julie Dawson, Senior HR Consultant, Alcumus Group