"Pimlico Plumbers loses holiday pay appeal", 2 Feb 2022

A heating engineer who claimed he was owed holiday pay by Pimlico Plumbers after the Supreme Court ruled that he was a worker and not self-employed, has successfully appealed against a ruling made by the Employment Appeal Tribunal [EAT] last year that his claim was out of time...

Last year the EAT upheld the Croydon employment tribunal’s 2019 ruling that Gary Smith had not filed his claim for backdated holiday pay quickly enough. Under tribunal rules, he should have made his claim for missed pay within three months of each holiday period, dating back to 2005.

But Lady Justice Simler this morning reversed that decision at the Court of Appeal, holding: “If a worker takes unpaid leave when the employer disputes the right and refuses to pay for the leave, the worker is not exercising the right...

Michael Ford QC, barrister at Old Square Chambers, wrote in a blog post: “The judgment is of importance to all workers denied the right to any paid annual leave, usually on the basis that they are not ‘workers’, and to all claims for unlawful deductions from wages, not only those brought in relation to under-paid holiday pay under the Working Time Regulations.”

He added: “The implications of the judgment for ‘gig’ workers [. . .] is huge. Already, such workers could rely on King to carry over the untaken portion of four weeks’ leave each year and obtain full compensation for it on termination; now, according to the Court of Appeal, they can carry over taken leave as well.”

In her judgment, 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...

In Smith v Pimlico Plumbers (2021) the appellant claimed that the employment tribunal was wrong to rule that he was not entitled to over £74,000 of holiday pay accrued over his six years’ service...

Pimlico Plumbers has been approached for comment.