The claimant worked as a plumbing and heating engineer for the respondent company.   The respondent contended that the appellant was a self-employed independent contractor without entitlement to paid annual leave. The claimant had taken unpaid annual leave, and this led to a series of cases against the respondent.  In related hearings, the Supreme Court held that those individuals were workers (see Pimlico Plumbers Ltd v Smith [2018] UKSC 29) rather than independent contractors.  The claimant’s holiday pay claim then returned to the Tribunal but it was dismissed on the basis that it was out of time.   The Tribunal did not consider the CJEU decision in King v Sash Window Workshop which had found that a claimant was entitled to bring a claim in relation to unpaid annual leave.  The respondent contended that this did not apply considering that the claimant had in fact taken the annual leave, albeit unpaid.

The EAT dismissed the claimant’s appeal.  On the King case it was held that it applied to a case where the worker had not taken their leave at all.   It would have been for a worker who has taken their leave to claim under Regulation 16 of the Working Time Regulations 1998 for a claim for holiday pay.  This distinguished the King case.  Therefore, the claimant’s suggestion was that a worker should be able to accumulate their claims for payment without regard to time limits. This would have led to an inconsistency between those who had taken their leave and those who had not.  Accordingly, it was held that the Tribunal was correct in stating that the claim was out of time.  The claim should have been presented by 4th May 2011 and it was not.

On the issue as to whether it was reasonably practicable to bring the claim in time, the EAT held that as the claimant was an intelligent individual, he could have made inquiries as to the position and brought a claim in time.   There was no real impediment, so the time-limit was not extended.   Lastly, the EAT outlined that it was not necessary to determine whether there was a series of deductions under the decision in Bear Scotland considering that the Regulation 16 claim was out of time in the first place.

Practical Lessons

The Supreme Court judgment on classification could be seen as giving rights to workers in relation to Pimlico Plumbers.  As this case has continued into the issues where there would be a tangible remedy for Mr Smith, there have been further difficulties.  The three-month time limit has come in and scuppered him considering the distinction made between this case and King.  The point is that when unpaid annual leave is taken the time begins to run.  Whereas when the leave is not taken because it is unpaid, then the failure to remunerate is continued by the respondent with time continuing to run.  This may seem somewhat harsh but will ensure that respondents are able to plan without claims that go back many years.
https://assets.publishing.service.gov.uk/media/6051e50c8fa8f55d3f3950d9/Mr_G_Smith_v_Pimlico_Plumbers_Ltd_UKEAT_0211_19_DA_UKEAT_0003_20_DA_UKEAT_0040_20_DA.pdf