Baillie &Gillard v lnex Home Improvements Ltd ET 1302646/14 & ET 1302647/14

Holiday Pay

Employment Tribunal finds an entitlement to Holiday Pay where Claimants were issued with Self Employed Contracts for Services

• Claimants were workers within the meaning of Regulation 2(1)of the Working Time Regulations 1998

• It was not the intention of the parties that the contract should be the exclusive terms of their agreement

• The Tribunal could look outside the terms of the contract to the overall factual situation

The Regulations ,since their introduction,have raised the possibility for some of the self- employed to claim that they are workers and as such are entitled to holiday pay. There have been several claims of this nature in the construction industry concerning building workers and this question arose again before the Tribunal in this matter.

Mr Baillie was a bricklayer and Mr Gillard was a hod carrier. The Respondent, lnex Home Improvements was a construction company and a contractor for the purposes of the Construction Industry Scheme (CIS)within the meaning of Section 59 of the Finance Act 2004.

The Respondent was contracted by a third party construction company to complete some work and the Claimants completed a Sub- Contractors Details form and were issued with self- employed contracts for services by the Respondent dated 281 March 2013. The Inland Revenue had accepted the Claimants as Schedule D self -employment. However, neither Claimant signed the contract and the Tribunal was satisfied that it was not the parties intention that the documents should be an exclusive record of their agreement as it was found that there was clear reference to verbal agreements.

Employment Judge Choudry sitting at Birmingham upheld the claim for holiday pay. She was satisfied that the Claimants had undertaken to personally perform work or services and was also satisfied that there existed a mutuality of obligation for both parties. She found that the Claimants were integrated into the Respondent’s workforce and concluded that the Claimants were workers within Regulation 2(1)of the Working Time Regulations 1998 .

Leslie Millin represented the Claimants, instructed by Peter Welsh of 0 H Parsons.