A report recently published by the Middlesex University business school claims that workers are losing £1.3bn a year in holiday pay.
Many self employed workers or those on contracts of very few, or perhaps zero, guaranteed hours are not aware of their rights. It is workers, and not employees, who are entitled to legal protections including holiday pay.
The recent Uber judgment, which is subject to an appeal to be heard later in 2017, confirmed a legal distinction between self employed workers and the genuine self employed person. A worker would be a hair dresser treated as self employed and responsible for their own tax affairs, but who rents a chair from a salon and relies on that salon and its clients for work. A self employed hair dresser would offer their services to the wider public including advertising and so forth so as they were not primarily reliant on the salon or any other sole source of work to continue to earn.
The self employed worker would be entitled to be paid holiday pay whereas the genuine self employed person would not.
There are numerous industries that often use contracts of ‘self employment’ to avoid various legal obligations including holiday pay. Others include the call centre industry and the construction industry.
If you are considered self employed, but receive your primary income from one business either now or at any time within the last year, we may be able to assist you on a no win no fee basis to recover the holiday pay you were entitled to and deprived of.
Call MJV & Co Solicitors today on 01253 858 231 or e-mail info@mjvlaw.co.uk
by MJV&Co
The Taylor report was published today and the response has been rather negative from employment lawyers.
The purpose of the inquiry was to come up with suggestions as to how current laws can be simplified to better protect workers with special attention being paid to those working within the “gig economy”. This is comprised of short term or zero hour employment contracts rather than secure, permanent jobs.
His primary suggestions are, according to City A.M.:
Businesses should be transparent as to how they employ people and provide detail of how many zero hour contracts they offer and who is classed as working within which employment status;
A worker’s employment status should be determined before a case proceeds to the Employment Tribunal and the burden of proof will be on the employer to disprove a Claimant employee’s claimed employment status. However, there is little detail on this and it is unclear what mechanism there will be to determine this prior to a tribunal hearing and more clarity is required;
The term worker should be defined as a dependent contractor to make it clearer that the self-employed who rely primarily on one business for their income are included, although the report warns that this change should be enacted in a way that does not harm those who benefit from the current system;
Use data to calculate the cost of each job. This suggestion involves an employer being required to analyse data they hold to calculate the average length of a task, how many tasks per hour a worker could reasonably be expected to undertake and monitor whether that worker is receiving the national minimum wage. If they are not, they will be required to top up the worker’s income to the minimum wage;
Abolish the loophole that allows agency workers to be paid less than permanent ones; and
Make the National Insurance changes proposed and then scrapped by the Chancellor to ensure parity between the N.I. paid by the employed and the self-employed.
Time will tell whether the proposals will be implemented and, if they are, whether they go far enough. Publishing the details of zero hour contracts to, seemingly, attempt to name and shame employers may have some impact, but in the writer’s view not enough. Workers on zero hour contracts are entitled to holiday pay calculated with reference to the number of hours worked on average rather than the hours within their contract, but few workers who work under such agreements have the confidence and job security to insist upon this if it places their job and income at risk.
More needs to be done to protect workers from unfair treatment and dismissal, exploitation in terms of holiday pay and sick pay and employers not paying the minimum wage. Perhaps, though, for now, it is for the lawyers to ensure that correct advice on the protections they do have is provided to as many workers as possible so they have the tools and the knowledge to stand up for their rights.
