Advocate General Tanchev's opinion opens the door to the possibility that individuals who have been wrongly labelled as "self employed", when in fact they are workers with rights to holiday pay (amongst other things), could have claims for accrued holiday pay going back many years. However, before too much panic sets in, there are a number of important points to note:-
- The opinion of an Advocate General is not binding on lower courts or tribunals;
- While judgements from the CJEU do often agree with these opinions they do not always;
- Even if the CJEU does issue a judgement in terms similar to this, many cases may be able to be distinguished from Mr King's. This is because the claim deals with untaken but accrued holiday. Had he taken his holiday entitlement and not been paid for it then the usual limitation rules would apply - i.e. any claim must be brought within 3 months of a deduction, and if there is a series of deductions then a gap of more than 3 months between them will break the series.
Also this month another cycle courier has successfully brought a claim for holiday pay. Excel Group Services is the latest company to be found to have incorrectly labelled a worker as self employed. This follows on the heels of the widely publicised claims against Uber, Deliveroo and CitySprint. It seems that increased protection for workers in the gig economy is one of the policies likely to be taken forward despite the uncertainty caused by the General Election, with all parties having made election manifesto promises on this issue.