Gary Smith, a heating engineer who won a Supreme Court case against Pimlico Plumbers establishing he was a worker rather than self-employed, has lost an Employment Tribunal claim for £74,000 holiday pay because it fell outside the three-month rule.
Pimlico Plumbers had admitted to the claim of unlawful deductions to the value of £336 but denied the payment for holiday pay was due.
Smith, who worked at the firm for six years until 2011, is appealing the decision.
Jacqueline McGuigan, solicitor at TMP Solicitors, representing Smith, explained: “Pimlico Plumbers admitted that the leave was unpaid, but denied any payment was owed. It said that the claim was time barred because Mr Smith should have brought a tribunal claim within three months of each unpaid leave date starting from 2005, unless each leave date was taken within three months of the last as a ‘series’ of leave.
“The tribunal found that Mr Smith’s last holiday leave was on 4 January 2011, which was over the Christmas period. Mr Smith had a heart attack on 5 January 2011 and was hospitalised. Therefore, pursuant to the three-month tribunal time limit for lodging claims, his claim had to be lodged no later than 3 April 2011 so as to claim only the last two weeks' unpaid leave. At the time that Mr Smith brought his tribunal claim in 2011, the law operated differently and did not impose this three-month requirement between each leave period.
“Mr Smith did not know he was entitled to paid leave [while] he was employed by Pimlico Plumbers and so did not bring a tribunal claim for unpaid leave by 3 April 2011. He believed that at all times, because of the way in which the company was run, he was self-employed and not entitled to paid leave. Mr Smith says his contract with Pimlico Plumbers was terminated on 3 May 2011. After termination he brought a claim for unpaid holiday and disability discrimination.
“Mr Smith says he is extremely disappointed at the outcome after spending seven years going through the courts defending his legal right to be recognised as a worker.”
Smith is appealing the ET’s decision, while Pimlico Plumbers is considering reclaiming its tribunal costs from Smith and suing for reputational damages.
Charlie Mullins, chief executive officer at Pimlico Plumbers, said: “We’ve been through four hearings before this week, all the way to the UK Supreme Court, and each time we have insisted that Pimlico Plumbers has done nothing.
“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.”
