We previously reported the recent Court of Appeal decision of Smith v Pimlico Plumbers Ltd. The right to paid holiday was held by the Court of Appeal to accumulate from one leave year to the next, until it crystallised on the termination of his employment.
The Court of Appeal has now added a postscript and appendix to its judgment in order to set out wording it says should be read into the Working Time Regulations 1998 in order to comply with EU law.
The suggested wording is:
"Where in any leave year an employer (i) fails to recognise a worker's right to paid annual leave and (ii) cannot show that it provides a facility for the taking of such leave, the worker shall be entitled to carry forward any leave which is taken but unpaid, and/or which is not taken, into subsequent leave years."
The Court of Appeal has acknowledged it does not have power to draft regulations. However, given the significance of the decision it is possible this wording will be used by future claimants in order to support arguments around the circumstances under which it might be possible to carry over accrued but untaken leave from one holiday year to the next.