STOP PRESS! The existing accepted legal view on the deduction of holiday pay claims was that a gap of more than 3 months in a 'series' of deductions broke a series of non-payment of holiday pay and thus impacting on the backdated deductions that could be claimed.
However, the Court of Appeal in Northern Ireland (NICA) in the case of Chief Constable of Northern Ireland Police v Agnew has brought that position into some doubt.
In a wide-ranging appeal, the NICA 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 that 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."
Lord Justice Stephens 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.
As the case was on Northern Irish Law, it is not formally binding on tribunals in Great Britain who are still required to follow Bear Scotland Ltd. The wording of the ERO and the Employment Rights Act 1996 is however identical. This case will, therefore, provide strong persuasive authority on any future appeal which argues that Bear Scotland was wrong. We may now see further challenge to the accepted position in the United Kingdom.