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.
Background:
The claimant’s employment was terminated, and he was entitled to accrued holiday pay in line with the Working Time Regulations (“Regulations”). There was a contractual term stating: “Employees may, on termination of employment, be entitled to payment for untaken annual leave or for other accrued time off. Payment will be based on 1/365th of annual salary for each day’s leave. Any payment will be subject to the usual statutory reductions.”
While working, the claimant received his normal pay per week when he took a week off on holiday. The claimant worked 37 hours per week. On termination the calculation was made so that payment was less i.e., 1/365th rather than the normal work schedule of the claimant. The Tribunal, at first instance, found the contractual term should be followed as it was a relevant agreement for the purpose of the Regulations.
Outcome:
The claimant appealed the decision to the EAT. The EAT stated the proper approach was to divide the annual figure by 52 which allows for the proportion of the leave to be calculated. The EAT noted it was the time taken off work that was important in relation to the health and safety objective behind the Regulations and not the calculation of the payment. The contractual term, in that sense, would be undermining the purpose of the legislation. It was held any payment which fell below the usual level of pay would not be in line with the Regulations. The meaning of the ‘relevant agreement’ within the Regulations relates to those which are in keeping with the rights providing within those Regulations. It could not allow an agreement which limited those rights. Accordingly, the appeal was allowed, and holiday pay of £491.85 was awarded.
Practical Guidance for Employers:
The actual sums in this case may be low but the guidance is helpful. It demonstrates that the purpose of a relevant agreement as set out in the Regulations are such that those agreements must be in keeping with other aspects relating to time off. This is in keeping with the overarching objective relating to health and safety within the Regulations. If there are similar contractual terms in your employees’ contracts of employment, they should be reconsidered in light of this decision.
Full EAT decision:
https://assets.publishing.service.gov.uk/media/646cb42a8a71840012ae4f86/Mr_S_Connor_v_Chief_Constable_of_the_South_Yorkshire_Police_2023__EAT_42.pdf
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