One of the remedies a dismissed employee can seek if he takes his employer to an Employment Tribunal is re-instatement. Instead of claiming compensation, he asks to be re-instated in his old job.

If successful, the employee will be re-employed on the same terms of employment with no loss of pay, pension rights or continuity of employment, and with the benefit of any pay rises or other improvements he would have enjoyed if he had not been dismissed.

But what happens about the annual leave that would have accrued during the period between dismissal and re-instatement?  Because of the length if time it can take for a claim to get to a hearing, we could be taking about at least a year’s worth of holiday.

Well, the Advocate-General to the European Court of Justice has ruled that an employee should receive his entitlement to paid annual leave in the period between dismissal and re-employment where he was unable to benefit from it because of his employer’s unlawful act (i.e. unlawful dismissal). The Advocate-General felt that the situation was similar to that of workers not at work due to long-term sickness absence or maternity leave, where the right to paid leave continues to apply. 

You may be wondering why we are still bothered about judgments from the European Court now that ‘Brexit has been done’. And if you want to be really pedantic you can point out that the Advocate-General’s ruling is not binding on the full Court anyway.  That’s true, but if the final judgment comes during the implementation period, it will still be binding in UK law.  We are not quite out of the EU yet.