Posted Date: 7th February 2022

Worker previously deemed as “Self-Employed” wins holiday pay tribunal claim and is awarded £74,000 of holiday pay

Mr Smith worked for Pimlico Plumbers as a heating engineer over a six year period and claimed he was owed holiday pay, despite the company engaging him as a self-employed worker.  Mr Smith took periods of holiday, but he was not paid by Pimlico Plumbers as he was self-employed. Following termination of his engagement, Mr Smith claimed he was actually a worker, not self-employed, and bought forward claims for owed holiday pay. His case went to the Supreme Court where his relationship with Pimlico was examined and they upheld his claim that he was in fact a worker.

Historically, holiday claims had to be brought forward within three months of when the holiday pay should have been made, however the Court of Appeal disagreed and ruled that Mr Smith could claim for his unpaid holiday throughout his six year engagement because he hadn’t been able to exercise his right to paid leave.

Lady Justice Simler explained that a worker can only lose the right to take leave at the end of the leave year (in a case where the right is disputed and the employer refuses to remunerate it) when the employer can meet the burden of showing that it:

• specifically and transparently gave the worker the opportunity to take paid annual leave
• encouraged the worker to take paid annual leave and
• informed the worker that the right would be lost at the end of the leave year.

This case has huge implications for organisations who wrongly engage workers as self-employed contractors and is a prime example of why it is so important for employers to encourage workers to use (or lose) their holiday.

If you would like any further information on this subject or if you need support in assessing whether your contractors are genuinely self-employed, please contact us.