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An engineer who won a landmark case that he should be classed as a worker at Pimlico Plumbers has lost his claim for backdated holiday pay.
Joanne Stronach Director & Head of Employment and HR reports on this recent case.
Gary Smith had worked for Pimlico as a heating engineer from 2005 to 2011.
Throughout that period Pimlico regarded him as a self-employed independent contractor, without entitlement to paid annual leave. That meant Smith had to take periods of unpaid leave.
In May 2011, a dispute arose, which led to Smith leaving the company. He then brought proceedings in the employment tribunal, including a claim for backdated holiday pay totalling £74,000.
The case went all the way to the Supreme Court, which in 2018 ruled that he was a worker within the meaning of the Employment Rights Act 1996 and the Working Time Regulations 1998. This gave him extra rights, including an entitlement to holiday pay.
The holiday pay claim was returned to the Employment Tribunal but was dismissed because it was brought long after Smith had left the company and so was outside the statutory three-month time limit.
The Employment Tribunal has upheld that decision.
It held that the tribunal had been entitled to find that the last period of leave was taken between 18 December 2010 and 4 January 2011 so the claim should have been presented by 4 May 2011.
The tribunal was further entitled to find that it had been reasonably practicable for Smith, as an intelligent man carrying out a professional service, to have made inquiries as to his position and brought a claim in time.
There was in existence a clear legal entitlement to holiday pay for employees and workers. Smith took annual leave and knew that he was not being paid for it. As the tribunal found, there was no real impediment to him making inquiries about his position and seeking legal advice.
If you would like more information about the issues raised in this article or any aspect of employment law please contact Joanne on 01228 516666.
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