If the case is remitted to the industrial tribunal for an examination of the facts, there will be further delay in receiving clarification. It is now thought to be more likely that voluntary overtime will ultimately be held to be part of the holiday pay calculation. As a result, provisional audits of such arrangements within businesses are advisable. The focus of these audits should be the ‘forward looking’ position rather than a heavy focus on the risk of back pay claims. This is because the likelihood of significant back pay claims has been lessened by the findings in Bear Scotland by the operation of the three month time limit. Although decisions of the Court of Appeal in Northern Ireland are not binding in Great Britain, the outcome of this appeal is likely to carry considerable weight as a persuasive authority in the short term. In the longer term, if the case proceeds to a further appeal to the Supreme Court, it may yet bind the courts and tribunals in Great Britain directly. The key outstanding question was whether voluntary overtime should be included in the calculation along with the other allowances and with compulsory overtime. Hence the attention focused on the Northern Ireland Court of Appeal.
ACAS update guidance on Holiday Pay calculations 1 July 2015
ACAS have recently updated their guidance on holiday pay in an attempt to keep up to date with the flurry of court activity on the subject.
1 July 2015 will see a two year cap being placed on all claims that are brought now for backdated deductions from wages for holiday pay as a result of the introduction of The Deduction from Wages (Limitation) Regulations 2014. This means that the period that the claim can cover will be limited to a maximum of 2 years. Anyone who wished to bring a claim ahead of the introduction of the two year cap would have needed to have obtained an early conciliation certificate and presented the ET1 claim form to a tribunal on or before the 30 June 2015. The updated ACAS guidance on holiday pay does not refer to the recent ruling of the Northern Ireland Court of Appeal in Patterson v Castlereagh Borough Council that has held that there is no reason in principle why voluntary overtime should not be included in holiday pay, if it is normally carried out and is an "appropriately permanent feature" of the worker's remuneration .
Carrying over holidays when absent due to sickness 10 July 2015
Does an employee on sick leave have to show he was unable by reason of illness to take holiday for it to be carried forward and is the right to carry forward unlimited?
No and no, held the Employment Appeal Tribunal (EAT) in Plumb v Duncan Print Group Limited .
With thanks to Daniel Barnett’s employment law bulletin which provides the details of the case.
Mr Plumb, a printer, took four years' sick leave following an accident. Upon dismissal he sought payment for 60 days' accrued holiday for 2010, 2011 and 2012. The employment tribunal dismissed the claim because he was unable to show that his medical condition was the reason he did not take his leave. On appeal the EAT overturned the finding. Article 7 of the Directive does not require a sick employee to take annual leave during the leave year or to show he was unable by reason of sickness to take the leave: he may be unable or unwilling to take it, as per the decision of the Court of Appeal in Larner and is entitled to take it at a later date. Regulation 13(9) of the Working Time Regulations 1998 must be interpreted to give effect to the Directive. Note that this case concerned only the four weeks' leave granted by Regulation 13 and not any additional leave under Regulation 13A. In Sood Enterprises v Healy the EAT held that the additional leave is not eligible for carry forward. On timing the EAT ruled that such leave cannot be carried forward indefinitely and that it may be limited to 18 months' carry forward from the end of the leave year. The EAT held that it is clear from the wording of the Directive and the case law of the CJEU that national law is not required to allow carry forward without limit and that Regulation 13(9) should be read as permitting a worker to take annual leave within 18 months of the end of the leave year in which it accrued. In KHS AG v Schulte the CJEU held that carry forward may expire no earlier than 18 months and held that a shorter period might also be appropriate (in that case 15 months). Note that the issue of the time period for carry forward did not arise before the Court of Appeal in Larner .
CIPP Policy News Journal
25/04/2016, Page 124 of 453
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