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Weekly blog: The wait is finally over……..but are you ready for the Judgement????

Happy Thursday everyone, Dr Detail here…….  Now, some of you will say – what is going on Rob, you are never late!  That is correct, I am always the one who gets to wherever I need to be, at least 30 minutes early “just in case” there is a delay, or the car breaks down, or I have to stop for petrol (I drive an electric car, but you get the point!)

However, there is a very good reason I am late with my blog this week and that reason is that by the power of telepathy, I just knew that we would be getting the long-awaited Judgement in the holiday pay case of Chief Constable of Police Service of Northern Ireland v Agnew.  And sure enough, the Judgement was published just yesterday – as completely planned!

Emma would say that this is my “jammy Tice gene” in operation again.  That thing that always means I come out smelling of roses.  Like the time when we were delayed getting to our Cornish holiday home in August (yes, due to my lack of planning charging for the aforementioned electric car!) and Emma had booked the holiday shop to arrive between 4pm and 6pm.  Our ETA was 5.30pm so squeaky bum time for me.  Well, needless to say my “superb” planning meant that as we arrived into Looe, Emma’s phone went and of course it was the delivery man with our shopping, also arriving into Looe – see, timed to perfection and all in the plan!

Anyway, due to my superb planning, I can now tell you all about this Supreme Court case.  Before I do I would highly recommend a trip to the Supreme Court if you are in London….you even get to sit in the Judges’ chairs – a very surreal experience for me and Emma when we were in London earlier this year!

Don’t let me lose you when I talk about holiday pay because this case dealt with a really small – but very important – point. 

We all know that workers bringing holiday pay claims don’t have to bring separate claims for each underpayment (or the proper legal term “deduction”) – they can claim for them all together.  This is known as a series of deductions.  Up until this case, we were all of the understanding (due to previous case law) that if there was a gap of 3 months between any of these deductions, this broke the chain and the worker couldn’t then claim any deductions going back further.  The period of 3 months was used because you have to bring your claim at the Tribunal (well via Acas Early Conciliation) within 3 months from the deduction, so it flowed logically that a gap of 3 months would break the chain, right?

WRONG – or at least that is what the Supreme Court has ruled in this case.  There is no such hard and fast rule that a gap of 3 months will break the chain.  We have to look at the facts to see whether there is a series of deductions.  Factors that will be considered in answering that question include:

  • The similarities and differences of the deductions
  • Their frequency
  • The impact of the deductions
  • How the deductions came to be made and applied
  • What links the deductions together
  • And………all other relevant circumstances of course!

You will see that the chances are that any such holiday pay deductions are in all likelihood going to be sufficiently similar and linked to count as a series of deductions…..with no break!

Gulp – so, not ideal for employers, but remember that there is currently a 2-year hard backstop in place for these types of claims, meaning that 2 years’ worth of deductions is the maximum pay out an employee could expect to claim for.  This case will cause much bigger ripples in Northern Ireland where there is no such backstop – double gulp!!

What is the message here? Get your holiday pay ducks in a row.  Please don’t contact me if you have any questions – Emma is our resident holiday pay expert, so she is your superhero in this case.  PLUS – if I haven’t mentioned before, I am stepping away from fee earning to concentrate on the business side of, well, erm, the business……so (sad times) this will be the last blog you will get from me….I will leave you with Emma and the team to bring you more insights into them and all those little nuggets you need to know about!  Dr Detail over and out!