Holiday pay revisited in tribunal for gig workers
07 March 2023
In an employment appeal tribunal, 49 medical couriers have been allowed to pursue their claim for unlimited backdated holiday pay.
The original case was raised in 2018, where the medical couriers were represented by the Independent Workers’ Union of Great Britain (IWGB). The claim for backdated holiday pay was made from their engager, The Doctors Laboratory (TDL), which for some would date back to 1999. The couriers argued that their working relationship was like that of a ‘worker’ rather than ‘self-employed,’ meaning they would receive paid annual leave.
Although the employment status has not yet been established as a ‘worker’, the couriers were granted backdated holiday pay for two years. However, the appeal was delayed until the judgment from the Smith v Pimlico Plumbers case. This Court of Appeal concluded that provided a claim for holiday pay was made by the worker within three months of the termination of an engagement, the worker is entitled to retrospective unpaid leave. As a result of the 2022 judgement, the couriers case will now be reheard at a new employment tribunal factoring in the Smith v Pimlico Plumbers case law.
The upcoming couriers appeal could help to refine the division between a ‘worker’ and ‘self-employed’. If the employment tribunal decides that the couriers are ‘workers’ then this also has the potential to open up many more cases in the gig economy.
It is crucial for employers and their agents to get the employment status right for all employees. In practice this exercise should be reviewed for anyone working as a self-employed contractor and seek the appropriate legal advice.
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