08:49, November 30 68 0 theguardian.com

2017-11-30 08:49:03
At last, paid holiday for gig economy workers. But what happens after Brexit?

On Tuesday we received the result in the latest battle over workers’ rights. It was a fight between the Tory government and conservative British courts on one side and the court of justice of the European Union (CJEU) on the other. And the workers won.

The judgment handed down by the CJEU, in the case of King v Sash Windows Workshop Ltd & Richard Dollar, concerned the right to accumulate an entitlement to paid holidays for people who had not been given a right to paid time off by their employers. Indeed, King had worked from 1999 until 2012 without paid time off because his employer didn’t give it to him. Due to a combination of legislation introduced by the coalition government to protect businesses and restrictive interpretations by UK tribunals and courts, King would at best have been able to claim up to two years’ holiday. After this judgment, he can claim the whole lot.

As lawyers have already been pointing out, the implications are enormous. This is particularly the case for workers in the so-called gig economy. This sector, comprising Uber drivers and CitySprint couriers among others, is characterised by companies claiming the people who work for them are actually running their own independent small businesses and are therefore not entitled to the minimum wage or paid holidays, a practice the tribunals have repeatedly shown to be unlawful.

The Independent Workers’ Union of Great Britain (IWGB), which has brought many of the legal challenges on behalf of these workers, has long bemoaned the impunity with which gig economy companies flout the law. One of the main reasons for this impunity is because to date there have been so few consequences for companies depriving workers of their rights.

Government enforcement of employment law is virtually nonexistent – and even when workers assert their own rights in tribunal, the remedy is often paltry. The judgment in the CitySprint tribunal earlier this year was a case in point. The implication was that CitySprint had been depriving their workers of rights for years, yet the only financial consequence for the company was having to pay the claimant for two days’ holiday. And CitySprint responded to the tribunal decision by simply issuing new contracts, as if nothing had happened. The new contracts, on CitySprint’s own account, didn’t even change the relationship with the couriers but merely simplified the language and clarified the self-employment.

This new ruling, however, has real consequences for business. The law will now recognise the millions of pounds’ worth of holidays that gig economy businesses owe their workers. This is a debt that IWGB couriers and private hire drivers are certainly intending to collect.

The CJEU judgment is also a stark reminder of the impending disaster for workers’ rights that is Brexit. Importantly, this decision drives a coach and horses through the Tory mantra that workers’ rights will emerge unscathed from the Brexit process because the government intends to replicate all EU protections in domestic legislation. As this perfectly demonstrated, workers need not just EU law, but the CJEU’s interpretation of that law, for the fullest protections in the workplace. Under the Tories’ proposals on workers’ rights in a post-Brexit world, we would not have had this verdict – and people would not be getting the holiday pay to which they are legally entitled.

Of course, one can devise ways of protecting workers’ rights after Brexit. Staying in the single market would go a long way towards achieving this, including in the case of the right to paid holidays. What needs to be understood is the absolute magnitude of what workers stand to lose if nothing is done. The government’s plan of simply enshrining all EU-derived rights in domestic legislation, which could later be amended by a Tory government with very little oversight from parliament, simply won’t do the job.

For now, however, the gig economy’s labourers can celebrate. Their rights have just been made more real, the consequences for companies who behave unlawfully have been increased, and the likes of Uber, CitySprint, et al have just been landed with another well-deserved and self-inflicted blow.

Jason Moyer-Lee is the general secretary of the Independent Workers’ Union of Great Britain