The Northern Ireland Court of Appeal (NICA) has issued a judgment that challenges the three month break rule which has been used to limit holiday pay (and other unlawful deduction claims) since the Bear Scotland decision in late 2014. The decision also brings into question the assumption that the 4 weeks’ of Euro leave should be taken before any other leave.
This case deals with the gap of more than 3 months in a ‘series’ of deductions and whether that gap breaks that series.
The Court of Appeal in Northern Ireland (‘NICA’) in Chief Constable of Northern Ireland Police v Agnew says not. Although this case is Northern Irish Law, and is not formally binding on tribunals in Great Britain as we are required to follow Bear Scotland Ltd, it is likely to be a strong authority and provide persuasive argument on any future appeal in Great Britain.
This appeal decided a number of issues including what is meant by a ‘series’ of deductions from wages relating to holiday pay, and the meaning of ‘series’ in Employment Rights (Northern Ireland) Order 1996 (‘ERO’).
The Claimants argued that Mr Justice Langstaff was wrong in Bear Scotland Ltd v Fulton to decide a gap of more than 3 months between deductions broke a series. Lord Justice Stephens in Agnew, deciding that this could lead to “arbitrary and unfair results”, agreed with the Claimants:
“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.”
He 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.
It will be a case of watching how our laws in this are in Great Britain are influenced by this decision.