In the Employment Appeal Tribunal, 49 medical couriers have been allowed to pursue their claim for unlimited backdated holiday pay from their engager.
This could have major ramifications for the engagers of all temporary workers, including umbrella company workers, while also raising concerns over the confused nature of the relationship between employment status and workers’ rights.
This case involves 49 self-employed medical couriers represented by the Independent Workers’ Union of Great Britain (IWGB). On the workers’ behalf, IWBG made a claim for backdated holiday pay from The Doctors Laboratory (TDL), which provides a range of pathology services.
In 2018, in the initial employment tribunal, the couriers argued that their working relationship was akin to that of a ‘worker’, rather than ‘self-employed’, meaning they would receive paid annual leave.
They sought retrospective holiday pay for the entirety of their engagement with TDL (for some, this dated back to 1999). While employment status has not yet been acknowledged as ‘worker’, back-dated holiday pay was granted but restricted to two years.
This decision is to be appealed at an employment tribunal appeal, which was delayed until the judgment from the landmark Smith v Pimlico Plumbers case (released in 2022) was released. This case focused on backdated holiday pay and was heard at the Court of Appeal.
This Court of Appeal determined that provided 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. The decision set a precedent and is case law.
As a result, the medical courier case will be reheard at a new employment tribunal, with the Smith v Pimlico Plumber case law factored in.
Rebecca Seeley Harris, founder of Re:Legal Consulting, said, “These workers and hundreds of thousands of others over the years have been denied holiday pay because the system hasn’t kept pace with the changing world of work. And companies have been taking advantage of this, to the huge detriment of temporary workers. The upcoming employment tribunal could be a great leap forward in workers’ rights.
“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.”
Seb Maley of employment status expert, Qdos, added, “This case is just one of the countless disputes in the gig economy over employment status and, in turn, rights. As gig working grows, so does the confusion over whether these workers are self-employed, employed or somewhere in-between.
“These cases are altogether avoidable, though. If workers had their employment status assessed from the outset with each party agreeing to the terms, you wouldn’t see long, drawn out and expensive tribunals in which employment status is argued.
“Also key to point out is that if a worker is engaged as self-employed but, following an employment tribunal is deemed to be an employee, the business engaging them could be held liable for retrospective employment taxes, in addition to holiday pay. The figures involved could financially devastating.”