The worker can accumulate and postpone the right to paid annual leave not enjoyed, when the employer has not allowed such enjoyment.

Judgment delivered by the Court of Justice of the European Union on 29 November 2017 

The employee worked under a “self-employed contract on a commission basis”, from 1 June 1999 to the time of retirement, that is, on 6 October 2012. This employee only received commission, therefore when he enjoyed annual vacations, they were not paid.

That is why, at the end of his labor relationship, the worker claimed from his employer the payment of economic compensation for his annual vacation, not only for those enjoyed and not paid, but also for those not enjoyed and accrued, which corresponded to the period worked. This claim was denied by the employer for considering that the worker was a self-employed worker, and not an ordinary worker under an employment relationship.

The employee filed an appeal before the Employment Tribunal of the United Kingdom, which considered that this employee should be qualified as a “worker”, in the sense of Directive 2003/88, and that, he had the right to financial compensation for the annual vacation claimed.

However, the Employment Tribunal filed a preliminary ruling before the European bodies.

In this regard, the Court of Justice of the European Union understands that the worker must be able to receive his remuneration when he enjoys his annual vacation. In fact, the purpose of the paid annual leave is to enable workers to rest and have a period of leisure.

Therefore, any act or omission of the employer whose effect is to dissuade workers from the effective enjoyment of annual paid leave is incompatible with the purpose of the worker’s right to it. The claimant compared his case to one where the court granted a worker who could not enjoy his vacation due to illness the right to compensation –which are reasons beyond the worker’s control– arguing that he should be able to exercise his right to receive compensation for those vacations not enjoyed, due to circumstances beyond the worker’s control.

Therefore, admitting the inexistence of a worker’s right to annual paid leave acquired by the worker would imply giving validity to a behavior that would lead to an unjust enrichment of the employer and to the detriment of the objective of preserving the worker’s health.

Finally, the Court of Justice of the European Union opposes national provisions or practices by which a worker cannot postpone, and if necessary accumulate, rights to paid annual leave not exercised corresponding to several consecutive accrual periods, for the refusal of the employer to pay those until the end of their employment relationship.