By classifying workers as self-employed, businesses in the ‘gig economy’ may be depriving employees of benefits they should be entitled to.
A recent case explains more.
Mr King sold windows for The Sash Window Workshop Limited. His contract described him as self-employed, and he was paid solely on commission.
His contract didn’t say whether or not he was entitled to be paid for annual leave.
Between 1999 and 2012, he took some time off without pay. In one year, he took no leave at all.
On termination, Mr King had accrued 24.15 weeks of holiday entitlement. However, he had either been too busy to take it or not taken it because it was not paid.
Because the employer benefitted from Mr King not taking his leave, he made a claim to carry over all the untaken leave and require it to be paid.
The UK employment tribunal found he should have been treated as a full-time worker, but his employer won the appeal at the EAT. The matter was referred to the EU Court of Justice.
For the past 11 years, the EU Court of Justice has consistently ruled that paid holiday is a central European right that can’t be interpreted restrictively.
In a nutshell:
- An EU worker should know they are going to be paid before they take leave
- An EU worker can carry over untaken leave until the end of their employment
Despite Brexit, this decision binds UK tribunals when deciding similar cases (unless the supreme court overrules it in future). It applies to applies to the 20 days of ‘euro-leave’ and not the additional 8 days under Regulation 13A of the Working Time Regulations.
Dr Jason Moyer-Lee, general secretary of the Independent Workers’ Union of Great Britain, said: “The law is now recognising the massive unpaid debt of gig economy companies to their workers”.
What this means to you
Employers cannot take advantage of workers and hope to avoid their obligations.
In EU law, a ‘worker’ is any person who pursues real, genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary.
If your employer classifies you as self-employed, talk to us to see whether you can claim worker status.
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