Gary Smith leaving the Supreme Court in 2018 PA Images / Alamy Stock Photo
An engineer who claimed he was owed holiday pay by Pimlico Plumbers, after the Supreme Court ruled that he was a worker and not self-employed, has been unsuccessful in his latest claim for backdated payments.
The Employment Appeal Tribunal has upheld the Croydon employment tribunal’s 2019 ruling that Gary Smith had not filed his claim for backdated holiday pay quickly enough. Under tribunal rules, he should have made his claim for missed pay within three months of each holiday period, dating back to 2005.
Smith had been seeking £74,000 in compensation for holiday pay relating to his time working for the plumbing firm, between 2005 and 2011.
The Croydon tribunal had also dismissed Smith’s disability discrimination claim.
In the latest case before the EAT, Smith argued the tribunal had not correctly applied the case law in this area and had erroneously concluded that he had not shown that it was not reasonably practicable for him to bring the claim within the three month time limit.
His argument centred around how the tribunal had applied the precedent set in the case of King v Sash Window Company – another case that considered pay for holiday that had been taken and accrued by a worker.
However, the EAT agreed with the tribunal that Pimlico Plumbers did not discriminate against Smith and that he is not entitled to backdated holiday pay.
The judgment says: “The CJEU’s decision in King was not concerned with leave that was taken but unpaid, and there was nothing in it to suggest that the carry-over rights in respect of annual leave that is not taken (because of the employer’s failure to remunerate such leave) applied to leave that was in fact taken.
“The tribunal had also not erred in determining that it had been reasonably practicable for the claimant to have brought his claim in respect of holiday pay within the relevant time limits.”
Pimlico Plumbers chairman Charlie Mullins commented: “This has been a long-running case and one that has attracted a huge amount of media attention, so I am extremely pleased that Pimlico has been completely vindicated by the EAT, and I hope that after almost a decade in the courts this case has finally been put to rest.”
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