The Supreme Court has provided judgement In the case of Chief Constable of The Police Service of Northern Ireland and another v Agnew (PSNI) and others, the Supreme Court decided that historical holiday pay claims can be brought where there are gaps of three months or more between periods of underpayment and unanimously dismissed PSNI’s appeal.
They have brought claims before the Industrial Tribunal to recover sums which should have been paid to them since November 1998 as part of their holiday pay when they took the annual leave to which they were entitled each year.
It later became clear from case law both in England and in the Court of Justice of the European Union that, in so far as the annual leave that they took each year was leave which they had a right to take under the EU Working Time Directives, and should have been paid their “normal” pay when they were on holiday, not just their basic pay.
That normal pay should have included an element for overtime because most of the workers regularly supplemented their pay by working compulsory overtime.
The PSNI, argued that the claims to the Industrial Tribunal were not valid as they fell outside of the statutory provision that states that a claim before an Industrial Tribunal can only be applied in respect of payments made in the three months before the claim is brought. That would mean that most of the money claimed by the workers would be time barred.
However, PSNI overlooked the fact that situation is slightly different in England, Wales, and Scotland because the government introduced legislation to limit how far back individuals can bring unlawful deduction from wages claims to two years. Northern Ireland did not do this. But, even with these restrictions, some employers will still have to pay their staff a substantial amount to settle their cases.”
To protect employers from facing claims for back pay potentially going back to 1998, when the Working Time Regulations were introduced, the Bear Scotland judgment said that any such claims would not succeed where there had been a gap of three months or more between holiday underpayments.
Northern Irelands Court of Appeal judgment said there was nothing in the Employment Rights (Northern Ireland) Order 1996 that set a limit on the length of gaps between unlawful deductions and concluded that a three-month period where the employee had been correctly paid would not break a series of deductions and prevent claims.
It indicated that if the underpayments could be linked, then they could form a series, even if they were more than three months apart.See Judgment Here