An engineer who won a Supreme Court case against Pimlico Plumbers – establishing that he was a worker and not self-employed – has lost his tribunal claim for £74,000 in holiday pay.
The Croydon employment tribunal ruled this week that Gary Smith had not filed his claim for backdated holiday pay quickly enough. Under tribunal regulations, he should have made his claim for missed pay within three months of each holiday period, dating back to 2005.
Smith’s case against the company dates back to 2011, and the Supreme Court decision in June last year upheld a previous Court of Appeal decision that he should be classified as a worker, despite signing an agreement with the company declaring himself as self-employed.
His lawyer, Jacqueline McGuigan of TMP Solicitors, said he would appeal the decision and that he was “extremely disappointed at the outcome after spending seven years going through the courts defending his legal right to be recognised as a worker”.
In a statement, she explained that Smith did not know he was entitled to paid leave while he was employed by Pimlico Plumbers so did not bring a claim until after his contract was terminated in May 2011.
Charlie Mullins, CEO of Pimlico, said that the tribunal’s decision not to pay out was a “vindication of everything that Pimlico Plumbers stands for”.
He said: “While the Supreme Court deemed him to be a ‘worker’ and entitled to associated rights, the tables have been turned and common sense prevailed in the actual employment tribunal and Mr Smith has been told that he wasn’t entitled to a penny.”
“It also sends a message to those who have taken advantage of this case to peddle their poisonous bile about my company, and that they are in truth just a bunch of small-minded haters.”
Mullins is also considering suing for damages, “since there are some serious and obvious issues of reputational harm at stake here, which I am eager to pursue”. He also plans to pursue Smith for costs, which he will donate to charity.
He added: “I also would like to once again make it very clear that Pimlico engineers are the best paid in the industry, with average earnings topping £100,000 per annum, with many able to earn far more.”
Neil Tonks, legislation expert at payroll software company MHR, said the decision could put off workers in similar situations pursuing this type of claim.
“Although rulings by employment tribunals don’t set a formal legal precedent, it nevertheless represents a real blow to individuals in the gig economy looking to make similar claims, who have been wrongly classed as self-employed for some time and are totally unaware of what rights they do and don’t have,” he said.
“The case again highlights how new agile models of working have left many people in the dark about their employment status and the need for greater clarity.”