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Family of dead workers entitled to claim holiday pay, rules ECJ

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Employers are liable for claims of unpaid holiday pay even if a member of staff dies in service, following a ruling by the European Court of Justice (ECJ) yesterday.

The case was brought before the ECJ after a German court ruled a woman could not claim around 140 days of holiday pay following the death of her husband. She asserted that she was owed the equivalent of about £13,000.

The European court ruled the German verdict as unlawful and said that across Europe the estate worker who dies in service is entitled to any holiday benefits still outstanding. A statement from the court read: "The unintended occurrence of the worker's death must not retroactively lead to a total loss of the entitlement to be paid annual leave."

Fiona McAnaw, head of employment at BTMK Solicitors, told HR magazine the ruling was "not unexpected". She added that employers should be aware of their financial responsibilities following the ruling. 

"It is a debt owed to the employee and, therefore, the personal representatives of the deceased’s estate can claim the payment," she said. “While there are exceptions, it is possible that many statutory employment claims could be brought or continued on behalf of the deceased’s estate by that party’s personal representatives.”

McAnaw went on to say that HR functions have a big part to play in ensuring compliance. 

"HR teams should review the way in which employment contracts deal with untaken holiday," she said. "Long-term sick employees are permitted to carry forward untaken statutory holiday until they return to work. However, it may be possible to implement provisions that limit the scope of the carry-over.”

In May, the European court ruled that commission must be taken into account when calculating employees' holiday pay.