A Northern Ireland Court of Appeal ruling could lead to a further development in how much employees can claim in relation to holiday pay claims. Workers ordinarily have three months to bring a claim for an underpayment. Where there is a 'series' of underpayments, a worker may bring a claim within the last three months of the last underpayment in that series. The current position is that where there is a break of three months or more in the 'series', this limits how far back the employee can claim. The case of Chief Constable of Northern Ireland Police v Agnew considered whether a gap of more than three months in a 'series' of deductions should break that series. The Court of Appeal in Northern Ireland (the 'NICA') said it did not.

In making their judgement, the NICA considered 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 (the 'ERO'). The Claimant argued that previous case law was incorrect to decide a gap of more than 3 months between deductions broke a series and Lord Justice Stephens agreed stating that this could lead to 'arbitrary and unfair results.'

This Judgment is not formally binding on tribunals in Great Britain. However, the wording of the ERO is identical to the equivalent law in the rest of Great Britain and therefore this case will provide persuasive authority on any future appeal. It is therefore important for employers to consider claims for an underpayment carefully and not simply assume that a payment may be out of time, simply because of a three month break.

First published Jul 4, 2019.

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