Is a contractor with an unfettered right of substitution entitled to receive holiday pay under the Working Time Directive?
No, if he is genuinely independent and is not subordinate, held the CJEU in B v Yodel Delivery Network Ltd .
A courier made a claim for holiday pay. His contract specified that he was an independent contractor and provided him with a right to appoint a substitute with no limitations, except that the substitute must be suitably qualified. The courier could set a limit on the number of parcels that he would deliver, had flexibility about when to deliver them (unless a customer had requested a particular time slot), and could work for a competitor without restrictions.
The CJEU concluded that an employment relationship implies the existence of a hierarchical relationship between a worker and his employer, in which the worker is subordinate to his employer. An independent contractor can be a worker if their independence is fictitious.
The CJEU considered that the independence of the courier did not appear to be fictitious and that there did not appear, on the face of it, to be a relationship of subordination, but it will be for the Watford Employment Tribunal, as the referring court, to make a final decision on that.
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Thanks to James Medhurst of Royds Withy King for preparing this case summary