The Employment Tribunal delivers a Blow to Workers whose Rights have been breached

The Employment Tribunal has ruled on the claim brought by Gary Smith, who won a workers’ rights case in the Supreme Court against Pimlico Plumbers which had far-reaching implications for the gig economy, denying his claim for £74,000 in back holiday pay after the Tribunal ruled that, in law, he was out of time as he had not submitted his claim within three months of each separate breach of holiday pay from 2005 until 2011 when he no longer worked for the firm.  Whilst this does not affect the victory Mr. Smith achieved in the Supreme Court, it has now become a pyrrhic victory.  

The Supreme Court’s decision in 2018 had wide repercussions for the businesses and staff of the gig economy such as Uber and Addision Lee, in that it changed the status of their staff from “self-employed” to “workers” which delivered a raft of basic employment rights which they had not previously enjoyed. This meant that such workers now benefit from the so-called “limb (b) worker” protection which is a sort of half-way house between full employment and true self-employment. Limb (b) workers are indeed self-employed but, crucially, are not considered in business on their own account, but work within the domain of someone else’s business and cannot make decisions about their workload.

The Employment Tribunal’s decision in Mr. Smith’s case effectively prevents individuals from claiming for holiday or sick pay retrospectively from their employers or former employers if their claim is not within the prescribed three month period.  Mr. Smith’s lawyers intend to appeal and point out that an individual in the gig economy may be unaware of their employment status and the rights they should have and therefore they do not know that they have been denied those rights, it may not be reasonable to expect them to bring a claim within three months of any breach.   

Pimlico Plumber’s founder, Charlie Mullins, who is described on the firm’s website as “direct, opinionated, controversial and has a no-nonsense, black and white attitude” was left infuriated by the Supreme Court’s decision and said at the time he would take the matter back to the Employment Tribunal, however that would not have changed the Supreme Court’s ruling.  Following this blow to Gary Smith, his former worker, Mr. Mullins is claiming a victory and using the opportunity to denounce those who have criticised him and his business.  He has also stated that he has asked his lawyers to pursue Mr. Smith for legal costs and if successful the money would be donated to charity.   

Giambrone’s lawyers within the employment team point out that if you suspect that your employment status may be ambiguous or you are unsure which category you fit into you should immediately seek clarity from your employer.  If there is a breach of the current employment law, if, after reasonable discussion with your employer, who may also be unaware of the situation, there is no resolution do not delay making a claim at the Employment Tribunal as you may risk being timed-out.

Our employment team lawyers equally advise employers to re-visit the terms of employment of all self-employed “dependent” contractors and make sure that the business is not left vulnerable to a claim which could prove both damaging to the reputation of the business and far more costly than paying the minimum wage and holiday pay.

For more information about the rights of Limb (b) workers or any other employment law issue please click here