A gap of more than three months in a ‘series’ of deductions does not break that series, the Court of Appeal in Northern Ireland (NICA) has ruled.
In Chief Constable of Northern Ireland Police v Agnew NICA decided on what is meant by a ‘series’ of deductions from wages relating to holiday pay, and the meaning of ‘series’ in the Employment Rights (Northern Ireland) Order 1996 (ERO).
The claimants argued that the decision in Bear Scotland Ltd v Fulton that a gap of more than three months between deductions broke a series was wrong.
Ruling on this latest case, Lord Justice Stephens agreed with the claimants, deciding that this could lead to “arbitrary and unfair results”.
“There is nothing in the ERO which expressly imposes a limit on the gaps between particular deductions making up a series. We do not consider that there is anything implied from the terms of the ERO which compels to such an interpretation of a series. As a matter of the proper construction of the ERO we conclude that a series is not broken by a gap of three months or more,” stated Justice Stephens.
Writing in Daniel Barnett’s Employment Law Bulletin, Matthew Jackson of 10 KBW, explained that Lord Justice Stephens also decided that if there was a “sufficient similarity of subject matter, such that each event is factually linked with the next...in the alleged series...” that would be enough to amount to a series.
“As the case was on Northern Irish Law, it is not formally binding on tribunals in Great Britain who are required to follow Bear Scotland Ltd,” said Jackson. “The wording of the ERO and the Employment Rights Act 1996 is however identical. Agnew will therefore provide strong persuasive authority on any future appeal which argues that Mr Justice Langstaff was wrong.”
The same case also considered what should constitute ‘normal remuneration’ when calculating holiday pay. The Court ordered that holiday pay for police officers and civilian staff should include payments for overtime. This decision means that the Police Service of Northern Ireland is facing reported liabilities of up to €40 million.
The issue of ‘normal remuneration’ and what variable elements of pay should be included in holiday pay calculations has been tackled in several recent cases, including in Flowers v East of England Ambulance Trust where the Court of Appeal ruled that voluntary overtime should be taken into account when calculating holiday pay.
