Mr T Walsh v Brac Contracts Ltd — 2019

Mr T Walsh brought a claim for holiday pay under the Working Time Regulations 1998. The respondent said he was a self-employed independent contractor or tradesman. The tribunal heard limited evidence, with the claimant and Mr Clark each giving short witness statements and oral evidence, and no hearing bundle available.

The tribunal found that in June 2019 Mr Walsh verbally agreed with the respondent's Contracts Manager, Lee Russell, to work five days a week at the Knightsbridge site for £180 per day, with no substitution clause and no entitlement to holiday or sick pay. It found that he worked personally, that the respondent supplied the materials and tools he needed, that he was directed by the respondent's staff, and that he worked exclusively for the respondent between 3 June and 17 December 2019. On that basis, the tribunal held that there was sufficient mutuality of obligation for a contract and that the relationship was one of worker and employer rather than customer and contractor.

Having found worker status, the tribunal calculated the holiday entitlement and payment due on termination. It found that the claimant had worked for 28 weeks, that 54% of the leave year had expired, that he was entitled to 28 days' leave, and that he had accrued 15 days. It accepted that he had taken 5 days' leave and had not been paid for them, but said any separate claim for payment for holidays already taken under regulation 16(1) WTR 1998 would have been out of time. Applying regulation 14, the tribunal held that he was entitled on termination to payment for the remaining 10 days' accrued but untaken leave, which it calculated as £1,800 gross.