In person v SK Recruitment Agency Ltd — 2020

The claimant brought a claim for unpaid holiday pay arising from work with the respondent agency between 2017 and 2019. He said he had worked as a labourer on a clean-room construction project, signed contracts in 2017 and 2018 describing him as self-employed, and received CIS pay statements showing only basic-rate income tax deducted at source. He later obtained a UTR and completed a self-assessment tax return for 2018/2019. The tribunal accepted his oral evidence and found him to be a reliable and honest witness.

The tribunal held that the claim was out of time. It found that the last time the claimant could have sought or enjoyed paid holiday with the agency was April or early May 2019, and that a claim presented in time would have needed to be brought in late July or early August 2019. Applying the time-limit provisions under regulation 30 of the Working Time Regulations 1998 or section 23(2) to (4) of the Employment Rights Act 1996, the judge considered whether it was reasonably practicable for the claimant to present the claim in time.

On that question, the tribunal found that paid holidays and rights connected with them are generally known and readily discoverable by a person with connectivity and literacy, and that the claimant also had access to his sister's specialist accounting knowledge. It therefore concluded that it was reasonably doable for him to have brought a claim during his work with the agency or within three months after it ended. The tribunal dismissed the holiday pay claim and did not decide whether, on the facts, the claimant was properly a worker entitled to holiday pay or self-employed and not entitled to it.