Self-employed worker can claim 13 years of unpaid holiday pay

    Self-employed worker can claim 13 years of unpaid holiday pay

    The European Court decided that a self-employed window salesman, who successfully claimed worker status, was entitled to claim unpaid holiday pay for the entire 13 years of his engagement – some £27,000.

    The case was one in a string of decisions relating to the ever political gig economy. This is the name given to working arrangements where an individual is classed as self-employed and paid per job or ‘gig’.

    Worker status is often hotly disputed and is, unfortunately, a question of fact. This means that whatever label businesses and individuals choose to put on the engagement is far from determinative. The courts and tribunals will look at how the parties operate in practice, which might well change over time.

    The individual in question is at liberty to argue, when the relationship turns sour, that they were, in fact, a worker or an employee.

    What’s the benefit?

    Well, workers are entitled to a whole host of rights that self-employed contractors are not, including not only holiday pay but also sick pay and the national minimum wage or national living wage.

    In the case referred to above, the European Court held that a worker who is prevented from taking holiday must be allowed to carry over the leave, despite the prohibition in the UK’s Working Time Regulations 1998.

    So just how far can the worker go back in time?

    Well potentially 20 years, to when the original EU Working Time Directive came into force, if they've been engaged for that long.

    As this applies to the 4 weeks’ paid holiday afforded by the EU (rather than the more generous UK allowance of 5.6 weeks), we’re talking potentially about a whopping 80 weeks’ pay for the longest-standing workers!

    Watch this space for appeals in the future but, for now, anyone engaging self-employed contractors should proceed very carefully.

    What to do if you are self-employed

    If you are self-employed but think you may be able to claim worker status, you may want to contact the business you are working for and raise it with them to see if you can resolve the matter between yourselves.

    Unless the claim is of significant value, it might not be cost-effective to take legal advice. A solicitor will likely need to charge for the time they spend in seeking to resolve the situation. You may find it useful to seek free support from the likes of ACAS or your local Citizens Advice Bureau in the first instance.

    You should be aware that there are strict time limits for pursuing claims relating to holiday pay (and other employment claims generally). A failure to bring a claim in time, which is often specialist advice in itself, can be fatal to the claim.

    Please contact a member of our Employment Law Team if you have any questions or queries about this or any employment issue.

    [Originally published in December 2017; updated in February 2020]

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