29 November 2017
Holiday Pay Bombshell For Gig Economy Sector
Workers in the gig economy may be entitled to years of backdated holiday pay following a landmark ruling from Europe’s top court.
The decision in the case of Conley King, a window salesman who worked on commission only and received no pay when not at work, was made by the European Court of Justice and will have huge implications in the UK.
There have been many legal cases recently brought by people who had been classed as self-employed but who are in fact workers and so have the right to paid holiday. Many workers will not have taken holiday over the course of their contract because their ‘employer’ told them they would not be paid for it or the worker was uncertain whether they had the right to be paid. The ECJ has held that this is unlawful because it is contrary to EU law to deter workers from taking their holiday.
Even if an employer started offering paid holiday now, a worker could still claim for previous untaken holiday at the end of their contract.
As a result of this decision, such workers can claim on termination of their contract for payment for holidays untaken for the entire duration of their contract. They will not be limited to the two year period which applies to unlawful deduction from wages cases, but would have to bring a claim within three months of the end of the contract.
Even if an employer started offering paid holiday now, a worker could still claim for previous untaken holiday at the end of their contract. It also doesn’t matter if the employer genuinely thought that the worker was not entitled to be paid.
If workers have taken holiday but not been paid for it they can still bring a claim for payment, but it would be an unlawful deduction from wages claim and backdated for a maximum of two years. Also, any breaks of more than three months in taking holidays over that period would break the series of deductions and mean that a claim would have to be brought within three months of the end of that period, which may already have passed.
However, as many of these workers would not have realised they were entitled to holiday it is unlikely they will in fact have taken anything termed "holiday". Therefore, having taken “holiday” should hopefully not be an issue for them provided that they were not engaged on a series of separate short contracts.
The employment lawyers at Slater and Gordon specialise in claims involving holiday pay issues. If you have experienced a holiday pay dispute, speak to one of our employment law solicitors on freephone 0800 916 9060 or contact us online and we’ll be happy to help.
Harriet Bowtell is an employment lawyer based at Slater and Gordon in London.