King v The Sash Window Workshop Ltd and anor [2017] CJEU

Scott: Tell us about the King v The Sash Windows Workshor & anor working time case from the CJEU.

Mark: Absolutely. This has the potential to be the biggest case. Had I to do this over again, it may have been my number one case, but in November at Legal-Island's Annual Review of Employment Law conference, it was an Advocate General opinion. It has now since the 29th of November been a European Court of Justice decision, and they followed the Advocate General opinion, and the key issue here taps into working time. It taps into the gig economy. It taps into this whole notion of classification of the individual.

This individual was classified as an independent contractor for 13 years when in actual fact he was for all intents and purposes a worker, and under the working time regulations, he didn't take his holidays. He didn't take his 5.6 weeks or his basic 4-week holidays primarily because they were discouraged to do so and he wasn't going to be paid if he had taken them.

So there are a lot of issues here, a lot of issues that the questions were posed to the European Court of Justice, but effectively, what the court said was that if an individual is wrongly classified as an independent contractor and they're actually a worker, they're entitled then to the four-week paid holiday, and there's no backstop provision for that. Theoretically, they can go back now very shortly to 20 years, back to when the working time regulations came in, and claim.

That has massive ramifications. In this particular case, it went back 13 years for £24,500 worth of unpaid holiday pay, and now there's . . .

Scott: And all of his colleagues as well all have claims, yeah.

Mark: And the question mark now hanging over it in GB, although not applicable in Northern Ireland, is, "Does the two-year backstop legislation stand up to scrutiny based on the European jurisprudence?" Arguably, the answer to that is, "No, it doesn't stand up to scrutiny." So people who have been incorrectly classified as independent contractors who are actual workers can go back 20 years with the same employer, etc., for unpaid holidays. It has massive ramifications.

Scott: Now, the two-year rule in GB, I can't see how that would stand up against the European right because you'd be opting out of statutes, aren’t you?

Mark: That's right.

Scott: But it's only the four weeks.

Mark: It is. It is.

Scott: It's not all contractual holidays.

Mark: No, it's not.

Scott: It's not even the statutory holidays under the working time regulations, you could argue here, the 28 days, if you like, and the 5.6 ones. It's the four-weeks holidays . . .

Mark: It's the four weeks.

Scott: ...under European law.

Mark: That's right, but that follows the direction of travel that exists in working time cases prior to this anyway, so it was never going to be the 5.6 weeks, but regardless of it, if someone has been wrongly classified for 20 years as an independent contractor, that's 4 weeks of back-paid holiday over 20 years for 1 individual.

Scott: It's 80 weeks' pay.

Mark: It's a significant sum.

Related article: Read another review of the King v The Sash Windows Workshop & anor case.