Holiday pay - King v Sash Windows

Jade Nelson, 17th July, 2018

##The background

Mr King worked for Sash Windows on a supposedly self-employed basis. As a result, he was never given paid holiday. As we know he would not need to be a full employee to qualify for the paid leave - merely falling into the intermediate category of worker is enough. On that basis this case can be compared to other similar high-profile cases recently such as involving Uber, Deliveroo or Pimlico Plumbers.

Once it had been established that he was a worker the question became how far back Mr King’s claim could go. The employer argued that the Working Time Regulations 1998 stipulate that if holiday has not been taken then it is lost. Furthermore, there are usually limits that apply just how much can be carried over. However, the CJEU Court of Justice of the European Union stated otherwise. Because the failure to take holiday arose as a result of the employer denying them their true worker status then the employer could not benefit from any such time limits. Such claims could in fact, based upon this judgement, go back as far as 1996 and the original Working Time Directive.

This means that organisations who have supposedly self-employed contractors who are actually at least workers if not employees potentially face very significant claims for historic holiday pay. Perhaps one crumb of comfort for such employers is that this judgement only covers the original 4 weeks holiday as opposed to the 5.6 which our own Working Time Regulations now provide for. However, it is still a significant potential liability.

##What this means for you

If you have self-employed contractors working for your organisation you need to be satisfied that they are genuinely self-employed. Important points to bear in mind are that firstly it makes no difference if they are, and always have been, very happy to be self-employed and secondly the fact that they pay tax on a self-employed basis does not mean that an Employment Tribunal cannot declare them to be workers or even employees. They can potentially represent a very worrying liability.

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