Mr G Smith v Pimlico Plumbers Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Choudhury |
| Neutral Citation | UKEAT/0211/19/DA |
| Subject Matter | Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 17 March 2021 |
Copyright 2021
Appeal No. UKEAT/0211/19/DA
UKEAT/0003/20/DA
UKEAT/0040/20/DA
EMPLOYMENT APPEAL TRIBUNAL
ROLLS BUILDING, 7 ROLLS BUILDINGS, FETTER LANE, LONDON EC4A 1NL
At the Tribunal
On 15, 16 & 17 December 2020
Judgment handed down on 17 March 2021
Before
THE HONOURABLE MR JUSTICE CHOUDHURY (PRESIDENT)
(SITTING ALONE)
MR G SMITH APPELLANT
PIMLICO PLUMBERS LIMITED RESPONDENT
JUDGMENT
Copyright 2021
APPEARANCES
For the Appellant Ms Heather Williams
(One of Her Majesty’s Counsel)
and
Mr David Stephenson
(Of Counsel)
Instructed by:
TMP Solicitors LLP
30th Floor, 40 Bank Street,
Canary Wharf,
London E14 5NR
For the Respondent Mr Christopher Jeans
(One of Her Majesty’s Counsel)
and
Mr Andrew Smith
(Of Counsel)
Instructed by:
Mishcon de Reya LLP
Africa House
70 Kingsway
London
WC2B 6AH
Copyright 2021
SUMMARY
WORKING TIME REGULATIONS
The Claimant is a plumbing and heating engineer, who worked for the Respondent from August
2005 to May 2011. Throughout that period, the Respondent maintained that the Claimant was a
self-employed independent contractor with no entitlement to paid annual leave. The Claimant did
take periods of unpaid leave. On 3 May 2011, the Respondent suspended the Claimant. The
Claimant regarded this and other treatment as a fundamental breach entitling him to terminate the
contract. On 1 August 2011, the Claimant initiated a claim for, amongst other things, holiday pay.
At a hearing in March 2019 (the Claimant’s status as a worker having been confirmed by the
Supreme Court in the interim), the Tribunal dismissed the holiday pay claim on a preliminary
jurisdictional point that it was brought out of time. It did not consider that the CJEU’s decision
in King v Sash Window Workshop (C-214/16) [2018] ICR 693 (“King”) entitled the Claimant
to bring a claim in respect of unpaid annual leave that was taken. The Claimant appealed
contending that the Tribunal had erred in its interpretation of King and in determining that his
claim was out of time.
Held, dismissing the appeal, that the Tribunal had not erred in its interpretation of King. The
CJEU’s decision in King was not concerned with leave that was taken but unpaid, and there was
nothing in it to suggest that the carry-over rights in respect of annual leave that is not taken
(because of the employer’s failure to remunerate such leave) applied to leave that was i n fact
taken. The Tribunal had also not erred in determining that it had been reasonably practicable for
the Claimant to have brought his claim in respect of holiday pay within the relevant time limits.
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