The Edinburgh Employment Appeal Tribunal (EAT), in a decision in the case Bacica v Myles given on 20 September 2005, overturned a decision by an employment tribunal that Mr. Myles was a worker and therefore entitled to statutory holiday pay.

Mr. Myles was a painter and decorator and started working for Mr. Bacica in August 2003. He presented a Construction Industry Scheme (CIS) registration card and Mr. Bacica deducted tax on account from payments made to Mr. Myles. Mr. Myles also worked for a joinery company, also under CIS arrangements. His accountant prepared his accounts on the basis that he was self-employed and entitled to offset his expenditure against profits from trade.

Following a visit to the Citizens' Advice Bureau (CAB), Mr. Myles made a claim for holiday pay under the provisions of the Working Time Regulations 1998. He claimed the CAB had advised him that, because he was required to perform work personally, he was a "worker" and therefore entitled to statutory holiday pay. He subsequently took his claim to an employment tribunal and the tribunal agreed that he was a worker.

The EAT had no difficulty in overturning the employment tribunal's decision. The requirement that an individual must perform work personally is only one aspect of the statutory rules for identifying a "worker". The other key requirement is that the other party to the contract, for whom the work is carried out, must not be a client or customer of the individual's business. It was clear to the EAT that Mr. Myles was in business - work was performed on the basis of a CIS registration card, business accounts were prepared and filed, he was free to work for others and did so, his rate of pay covered his overheads, and he was not paid if he did not work - and that Mr. Bacica was a client of that business. Mr. Myles could not, therefore, be a worker.

Reference was made by the EAT to the guidance on the Working Time Regulations provided on the DTI's website which states, in line with the EAT's decision: "If you are self-employed, running your own business and are free to work for different clients and customers, the Working Time Regulations do not apply to you."

...back to 3 November 2005


Source:
Employment Appeal Tribunal
Working Time Regulations

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