How a recent ruling could impact on claims relating to holiday pay

 Joanne Galbraith-Marten 14 Aug 2019

The outcome of a recent legal case in Northern Ireland may have implications for members working there who believe their holiday pay may not have been calculated correctly.

Image of a pay slip

Does a gap of more than three months in a ‘series’ of unlawful deductions from wages limit how far back a person can claim?

In previous UK case law, the answer has been yes but in a recent legal case relating to holiday pay – Chief Constable of the Police Service of Northern Ireland v Agnew & Others – the Court of Appeal in Northern Ireland decided this wasn’t the case.

The legal case in question looked at the calculation of holiday pay for police officers and other people working in the police service in Northern Ireland dating back to the introduction of Working Time Regulations in 1998.

The claimants’ holiday pay had been calculated based on their basic pay rather than taking account of their ‘normal pay’ including overtime and allowances. The claimants submitted unlawful deduction of wages claims that were successful in the Employment Tribunal.

The police service appealed arguing that the claimants should be restricted in how far back they could claim because of gaps in the ‘series’ of deductions. This argument was in line with a ruling in a previous case in England – Bear Scotland v Fulton – in which the Employment Appeal Tribunal decided that a gap of more than three months between unlawful deductions in wages broke the ‘series’ and limited the claim.

However, the Court of Appeal in Northern Ireland disagreed in the case of  ​Chief Constable of the Police Service of Northern Ireland v Agnew & Others. It concluded that a gap of more than three months between deductions – and in this case deductions in holiday pay – did not amount to a break in the ‘series’.

The Court of Appeal in Northern Ireland concluded that a ‘series’ of deductions is a question of fact in each separate case and is not automatically broken when there is a gap of three months.

The case has now been sent back to the Tribunal to determine remedy but the police service may submit a further appeal to the Supreme Court.

This case has implications for our members working in Northern Ireland who believe their holiday pay may not have been calculated correctly with reference to overtime and allowances. If you would like further advice on this, please contact RCN Direct on 0345 772 610.

At the moment, this judgment is not binding on Tribunals in England, Scotland and Wales but the position may change if there is a decision from the Supreme Court on this issue.

In the meantime in England, Scotland and Wales, unlawful deduction from wages claims must be brought within three months less one day from the date of an individual deduction, an employee’s employment terminating or the last in a series of deductions provided there is not a break of three months between each deduction in the series.

Joanne Galbraith-Marten, Head of Legal (Employment)

Joanne Galbraith-Marten

RCN Head of Legal (Employment)

Jo is Joint Head of RCN Legal Services and has been a solicitor since 2003. She is an employment lawyer and has only ever represented Claimants and Trade Unions. Jo joined the RCN in 2010.

Page last updated - 27/05/2020