Thank you Emmzzi for the link, I found a case: MacFarlane and anor v Glasgow City Council (2001, IRLR 7), the EAT held that just because a gymnastic instructor could arrange a replacement from a register maintained by the council, if she was unable to attend, did not mean she could not be an employee. It is unclear what took place after the EAT ruling. However, you may be interested to know that I think in my case, I find myself in the same position as the claimants under McFarlane. The judge's reasons stated "in the view of the tribunal, the contract did not provide for personal service: "because there existed an unfettered right to arrange cover from the pool. Without such a provision it was not a contract for personal service and therefore not a contract of employment". I had to arrange cover from a cover list provided by my employer in the same way that the employees did in the McFarlane case. The judge in his final reasoning stated: "In the light of the finding that there was no obligation upon the claimant to provide personal services, the contract is not one of service. It is unnecessary to consider whether or not the claimant was under the control of the respondent or whether there were any other factors that were relevant to the determination of whether the contract between the parties was one of service." It seems very interesting, maybe I should appeal in the same way as McFarlane and another did. Maybe the Council settled with them? Thank you

Hello Becky, I now have the judge's reasons, but I should add that at the beginning of the hearing under my skeleton argument I had stated that "the claims for holiday pay are brought under the provisiosn of the ERA 1996 and alternativelt under the WTR 1998". There were some discussions and the tribunal raised the matter in case the parties expected a determination as to whather I was a worker in the event of a finding that I was not employed under a contract of employment. The respondent's representative took the view that it would not be proper or appropriate as to whether I was a worker as it was not an issue that had been identified at the preliminary hearing and the res was not in a position whether I was entitled to be treated as a worker under the exceptions relating to professions of business undertakings. Would this change your view as to whether I can make a fresh claim as a worker to claim my holiday pay? Thank you very much

Hello everyone, I have an update: I have now received a judgement from the tribunal. The tribunal held that I was not an employee within the meaning of section 230 (1) Employment Rights Act 1996. But no determination was made or indeed consideration given at the hearing (which in any event was a preliminary) as to whether I was a worker within regulation 2 (1) WTR 1998. I assume therefore I can make a claim for the tribunal to determine whether I am a worker even though I have previously asked to tribunal to determine I was an employee. If I were to succeed, would I still be able to claim back holiday pay from previous years? Many thanks!

Thank you all very much, in answer to your question, I am a fitness instructor in the leisure industry. The employer had previously been the council or local authority, but it then became outsourced. I do regular classes but there are three groups of people - self employed instructors, "casual" workers and those which have protected status through fixed hour contracts to teach their classes. This information on mixed contracts and status did not emerge until recently. Thanks again!

Oh one more thing sorry, I have been reviewing my file with letters that I had received from the employer I am in dispute with. They had said I cannot be an employee as they do not have an obligation to pay me (whether or not the work was provided). What exactly does that mean? Incidentally, do people on zero hour contracts get holiday pay? Many thanks!

Hi everyone, wow thank you all so much, I have so much more to dig into now Thanks again!

Hi Emmzzi, I have seen that page but I thought we have to quote some law when we speak to a Judge, I'm representing myself! I'm pretty sure I am an employee as I have had fixed hours for over two years, just like the contracted employees. It's a bit messy, I seen about five different contracts for the same job role, some haven't even been updated since this company took over from the last one over 10 years ago! Thank you again

Hi everyone, Can anyone help me to quote the right legislation to the Employment Tribunal? I am asking the ET to confirm that I should be administered as an employee rather than self employed. I am paid the same rate per hour as the employees but they get statutory holiday pay and SSP. We all do the same job and report to the same manager. The only difference is the way we are paid. Would there be some claim under the equal pay provisions? I would like the ET to confirm that I am an employee and I would really like backdated holiday pay! Can I claim that and if so can I claim it from the start of my self employment with them? Very many thanks!