The Court of Appeal in Northern Ireland has added a further complication to the holiday pay debate, holding that a group of police officers and civilian employees were entitled to backdated additional holiday pay to reflect overtime worked even though there was a break of more than 3 months between the underpayments.
You may remember the Bear Scotland v Fulton case from 2014 in which the Court of Appeal held that, where there was a break of 3 months between holiday underpayments, this broke the “series of deductions” and the worker would be out of time to claim for any underpayments before the 3 month break.
The NI Court of Appeal has however held that a gap of three months between deductions from holiday pay will not break a ‘series of deductions’, potentially allowing employees to make claims stretching much further back in time. It held that the EAT was incorrect to hold in Bear Scotland that any series of deductions is automatically broken by a gap of three months as a gap of 3 months could arise for various reasons including maternity, disability related illness or simply personal choice. It held that such gaps will not automatically break a series of deductions.
The current head of the police told the BBC that he had raised the issue with his replacement Simon Byrne, and said deliberations about whether to appeal the decision at the Supreme Court were ongoing.
“The repercussions right across the public sector are massive. It’s going to be tens, if not hundreds of thousands of pounds across the public sector if the ruling stands.
“If the figure of £40m is right, that money is going to have to come from somewhere in public service delivery.
The staggering £40 million figure is the estimated bill of unlawful deductions dating back over 20 years to over 3700 PSNI and Police Authority staff and officers in Northern Ireland
In stark contrast Mark Lindsay, The Chairman of the Police Federation in Northern Ireland, said he would be “surprised and disappointed” if the court’s decision was appealed.
“I think there is the question of where does any money come from, and it goes beyond policing. This is a legal entitlement that should have been paid to workers for many, many years.”
It should be noted that as the case involved Northern Irish Law, it is not formally binding on tribunals within the other UK countries, who are required to follow Bear Scotland. The wording of the Northern Irish legislation and the Employment Rights Act 1996 is however identical, and this case may therefore provide strong persuasive authority on any future appeal.