Mr Andrew Bailey v James’ Places (Northwest) Limited — 2022

The tribunal held that Mr Andrew Bailey was not an employee of James’ Places (Northwest) Limited, but that he was a worker for the purposes of the Working Time Regulations 1998 and section 230(3)(b) ERA. The arrangement began in October 2020 when the respondent approached him to return as Head of Marketing on a self-employed basis. The agreed oral terms were that he would work "hours to suit" and invoice £5,000 per month, later moving to an hourly rate. The tribunal found that he had to provide personal service for the core work, but that the respondent did not exercise the level of control required for an employment relationship, and that the other features of the arrangement were consistent with self-employment.

Because he was a worker, he was entitled to 5.6 weeks' paid annual leave. The tribunal found that the respondent's holiday year ran from 1 April to 31 March, so by the end of the engagement on 30 November 2021 he had accrued 3.73 weeks' leave. It found that he had taken three weeks' leave in the relevant holiday year: one week in May 2021, the week commencing 19 July 2021, and the week commencing 12 September 2021. He was paid for the May leave because the respondent paid his £5,000 invoice for that month, but he was not paid for the July and September leave.

The tribunal rejected the respondent's limitation argument and held that the July and September non-payments were a series of deductions, so the unlawful deductions complaint was in time. It therefore found that the claimant suffered unauthorised deductions from wages in respect of 3.73 weeks' holiday pay. The tribunal did not determine the cash amount of that entitlement, invited the parties to agree it, and directed that a remedy hearing would be needed if agreement could not be reached. The breach of contract complaint was dismissed because the claimant was not an employee.