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13-06-2014

Question: Does being dead extinguish the right to holiday pay?
Answer: Apparently not, says the European Court of Justice (ECJ).

This is a German case but relevant to English law.

B was employed until his death until November 2010. Up to his death he had accrued 140 days of annual leave as he had been on extended sick leave. When he died his wife asked for payment in lieu of his accrued holiday pay. His employer refused, the matter was appealed and eventually referred to the European Court of Justice (ECJ).

Article 7 of Directive 2003/88, (the Working Time Directive) treats entitlement to leave and to payment on that account as being two aspects of a single right.

Thus, according to the ECJ, the Directive must be interpreted as precluding any national law or practice whereby entitlement to paid annual leave is lost on the death of a worker without conferring an entitlement to an allowance in lieu of any leave outstanding.

This means that the employee’s estate was able to claim payment in lieu of the holiday that accrued and remained unpaid at the time of the employee's death.

It is relevant because English holiday entitlement is also derived from the working time directive.

See Gülay Bollacke v K + K Klaas & Kock B.V. & Co. KG, on reference from the German Courts.

Sarah Rushton (srushton@moonbeever.com)

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information.

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