Claimant v Scotsman Publications Ltd (in Administration) — 2019

The claimant was engaged by the respondent under a written freelance journalist agreement from November 2014. Although the agreement described him as self-employed, the tribunal found that the substance of the relationship made him a worker. He personally performed the services, had only limited ability to decline rotaed work, had no right to substitute another person, used the respondent’s equipment, and by 2015 was working about 40 hours per week as part of the respondent’s news team and newsdesk.

The tribunal accepted the claimant’s evidence, which was unchallenged because the respondent lodged no response and did not appear. It held that the label used by the parties was not conclusive and that the reality of the arrangement showed personal service under the respondent’s control rather than a client-or-customer relationship. On that basis the claimant fell within the statutory definition of worker for the Working Time Regulations 1998.

Having found worker status, the tribunal held that the claimant had been wrongly denied paid annual leave throughout his engagement. It relied on the reasoning in authorities including Byrne Bros v Baird, Pimlico v Smith, Uber, Stringer, Bear Scotland v Fulton, Sash Windows v King, and Max-Planck-Gesellschaft v Shimizu. The tribunal concluded that it could disapply regulation 14(3) so that earlier leave years were taken into account and the claimant received an effective remedy under European law.

The tribunal found that the claimant’s holiday year began on the anniversary of his start date and calculated the award on his gross pay of £95 per shift, with a week’s pay of £475 for five shifts. It awarded £2,660 for 5.6 weeks’ leave in 2018 and £1,900 for each of 2017, 2016 and 2015, making a total holiday pay award of £8,360 gross, with statutory deductions to be made.