As we have now officially entered the holiday period, I thought it apt to base the case review this month on two holiday claims! Just to add to the overall festive feeling of this month, the first two cases we are looking at originate from the home of Christmas, Finland!
TSN v Hyvinvointialan liitto ry (C 609/17) and another case
These cases are heading for the ECJ, but before they get there, the Attorney General has given his opinion on them, as is the norm. The cases both raised the question of how many holiday days can be carried over per year when a member of staff is too sick to take holiday.
It is worth noting that all EU member states must give their members of staff 4 weeks holiday per year as a minimum as per the Working Time Directive. However, many countries, such as the UK, give more than this minimum (currently 5.6 weeks in the UK if you work full-time).
The Attorney General’s opinion is that member states must allow members of staff to carry over the four-week allowance provided for by the Working Time Directive if they are too sick to take it. Any allowance in addition to the four-week period will be subject to national laws on carrying over holiday.
I think the opinion is probably going to be followed by the Court, as it would seem odd to for the ECJ to enforce carry-over of the extra holiday days which are optional for each country to implement. It is expected that the EJC will follow the Attorney Generals Opinion on these cases – but that’s never guaranteed.
Why is this decision important?
The EJC’s final decision in these cases will be extremely useful to those trying to resolve long-term holiday pay cases. These cases are becoming more and more common off the back of IR35 and the pushback against false self-employment. But currently there is conflicting case law in the UK, regarding whether or not you can claim for 5.6 weeks per year or just the 4 weeks provided for by the Working Time Directive, and the ECJ’s decision should settle that debate.
Stuart Delivery Ltd v Augustine
The second case this month is one of the “false-self-employment” type claims I mentioned earlier. The Employment Appeals Tribunal heard this case which revolved around whether or not a delivery courier was a ‘worker’ under S.230(3)(b) of the Employment Rights Act 1996.
The couriers worked on the basis of signing up for jobs through an app on their phone, which was managed by the Respondent. They could undertake ad-hoc deliveries through the app or sign up in advance to do “Slot” deliveries. Slot deliveries required the courier to be in a certain geographic location at a certain time. The courier who undertook this slot work was guaranteed a minimum of £9.00 per hour regardless of the number of deliveries completed if they stayed in the zone for 90% of the time and refused no more than 1 delivery.
If a Courier decided they no longer wanted to perform a slot delivery they would have to make a “release notification” which allowed other couriers who worked for the Respondent to take the slot on a first come first serve basis. They had no indication of who would take their slot if they made the release notification. If no one decided to take the slot then the original courier would remain liable to perform it. It they didn’t then complete the slot they would face penalties such as missing out on bonuses or getting a negative rating.
The case ultimately turned on whether or not the ability to make a release notification was an “unfettered right to substitute work”, which would point towards self-employment. The Employment Appeal Tribunal dismissed the appeal by the Respondent, finding that the release notification was not an unfettered right to substitute work as:
1. The Respondent had total control over who could be appointed – i.e. only other couriers on its app;
2. The Claimant had no right to choose their substitute – the app dealt with it.
Why is this decision important?
This decision helps to define what is meant by an unfettered right to substitution. It is common in gig economy cases to see “employers” arguing that they are contracting with people who are really self-employed, and a “right to substitute” is often included in the contract documentation to help the employers show that. The argument goes, that you can’t “personally” contract to do the work, if you can send someone else along. Recent authorities – like this one – are rowing back on this tactic, but saying that a right to substitute might not conclusively prove self-employed status if the right is subject to conditions or limitations (as here).
James Battle – Trainee Solicitor