Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Summary Description:
A case applying the Supreme Court’s decision from Agnew v PSNI regarding holiday pay. Found that the overall context should be examined in terms of sufficient similarity for the deductions and looked at alongside any temporal issues rather than being looked at separately.
Background:
The issues related to the complex pay system in the respondent whereby Cabin Crew’s basic pay would be supplemented by multiple allowances. The issue being whether these allowances should be reckoned into holiday pay. Many of the claims, emanating from 2007, were settled in 2013 but the six cases here did not settle.
These matters had to be determined in line with the decision of the Supreme Court in Agnew v PSNI.
Outcome:
The issue was the meaning of a series and the EAT allowed the claimants appeal citing that the test todetermine whether a series of deductions form a series is one relating to sufficient similarity. As said in Agnew the need to find a common fault or vice that the holiday pay was not calculated with reference to normal pay. The EAT further found that if there is sufficient similarity then the case should be successful even if there was a more granular level of analysis it may have shown some factual differences.
The question arose about whether there was a sufficient temporal connection between the deductions. The EAT held that Tribunals must be cognisant of the purpose of the legislation which was to protect vulnerable workers rather than looking for lapses of time to allow for a respondent to succeed. Indeed, it is normal for there to be gaps in time between successive holidays. The sufficient similarity and temporal tests should not be assessed in individual silos but rather looked at in the overall context of the relevant factual matrix. The factual matrix here being that the allowances were not included as normal pay for the purpose of holiday pay calculations and that led to the deduction.
Practical Guidance for Employers:
This decision provides employers and HR professionals with an idea of how Agnew v PSNI will be interpreted by the Tribunal. In determining whether there is exposure for holiday pay claims – one must ask what the reason was for it not being included in normal pay and that the Tribunal will not be expected to go into granular detail but rather look at the overall factual context. Very simply, where it is shown that the deduction is as a result of a failure to include some aspect of normal pay into the holiday pay – then it is likely that the case will succeed as being sufficiently similar and regardless of the fact that there will be gaps between the holidays taken by the employee.
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