A recent Court of Appeal decision has ruled a “worker”, can only lose the right to take “paid annual leave” at the end of a holiday year when the employer can meet the burden of showing:
A ‘worker’ can include employees and potentially self-employed subcontractors (even if they are self-employed for tax purposes).
If an employer is unable to meet this burden of proof, the right does not lapse but carries over and accumulates until termination of the contract. At which point the worker is entitled to a payment in respect of the untaken leave.
Whilst each case will be determined on its own facts, the principle specifically establishes requirements on the employer in respect of ensuring ‘workers’ are given the right to “paid annual leave” in a holiday period.
Do your processes and procedures enable you to meet the required burden of proof and mitigate your risk should you be faced with a challenge from a worker or employee?
9 February 2022
