Julie Duane, Solicitor Advocate at CG Professional.
The tide is shifting for holiday pay claims, where a 3 month break in underpayments of holiday pay does NOT break the chain for going back further. Although the case is not technically binding on English/Welsh and Scottish Tribunals it is persuasive and likely to be relied upon in future cases.
In Chief Constable of Northern Ireland v Agnew, the Court of Appeal in Northern Ireland (NICA), held that a gap of more than three months in a series of deductions does not break that series.
In reaching its decision the NICA held that the term “series,” as defined in the Employment Rights (Northern Ireland) Order 1996, does not impose a time limit on the gaps between deductions making up a series. The NICA held that there was nothing within legislation which compelled the Court to put a strict timescale on the interpretation of a series. As such the Court concluded that a series is not broken by a gap of three months or more.
Although the Claimant sought to rely on the well-known case of Bear Scotland Ltd v Fulton which held that a gap of three months or more broke a series of deductions, Lord Justice Stephens in Agnew concluded that this assessment would lead to “arbitrary and unfair results”. His Lordship further stated that where “there is sufficient similarity of subject matter such that each event is practically linked with the next…” this would be enough to constitute a series.
NOTE FOR EMPLOYERS:
Although this case is not formally binding on tribunals in Great Britain, it remains persuasive and is understandably a matter which is likely “to throw the cat amongst the pigeons.” This is because the wording of the Employment Rights (Northern Ireland) Order 1996 and the Employment Rights Act 1996 are identical and therefore may arguably give rise to submissions on whether the Tribunal in Bear has misconstrued the legislation. It would equally be interesting to see how the argument of statutory time limits would affect those arguments.
If you have any questions regarding holiday pay or another other employment-related matter, please do not hesitate to contact a member of the CG Professional team who would be more than happy to help.