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Gig workers given go-ahead in backdated holiday tribunal

An employment appeal tribunal has allowed 45 medical couriers to pursue a claim for unlimited backdated holiday pay.

The result of the appeal, which rests on whether the couriers should be classed as workers or as self-employed, may help to clarify in English law where the boundary lies between the two.

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The couriers’ original case, raised in 2018, argued the working relationship with their engager, medical lab The Doctors Laboratory (TDL), made them workers. 

Though unsuccessful, the couriers were granted two years’ backdated holiday pay.

The couriers’ appeal was delayed until the judgment from the landmark Smith v Pimlico Plumbers case was released in 2021.

The case determined that if 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. 

Rebecca Seeley Harris, founder of legal firm Re:Legal Consulting, said the couriers’ case could mean a leap forward for workers’ rights if successful.

She said: “This is the first case to my knowledge which has been given consent as a result of the court of appeal’s judgement in Smith v Pimlico Plumbers regarding holiday pay. 

“If the fresh employment tribunal decides that the couriers are indeed ‘workers’ and deserve employment rights, then this case could open the door to many others in the gig economy.”

According to Seb Maley, CEO of contractor insurance firm Qdos, the decision could affect organisations of any sector that employ temporary workers, whether taken on independently or through an umbrella company.

He told HR magazine: “First and foremost, to prevent cases like this, businesses – and in turn, HR teams – should carry out employment status assessments prior to engaging self-employed workers. With clarity over this and agreement between all parties, these situations will be avoided.”

For HR teams concerned of a similar case coming their way, he added: “If one of these cases does materialise, it should be handled with care, and a full investigation focusing on all the facts must be conducted. 

“Given employment law is so complex – and one which is liable to change in light of ongoing cases – expert advice should also be sought.”