Court of Appeal: PSNI officers entitled to claim for underpayment of holiday pay from 1998

About this case:

• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Lord Justice Stephens

Finding that the officers were “workers” for the purposes of EU Community law, Lord Justice Ben Stephens urged the parties to come up with a “pragmatic, administration-friendly” solution to the issue of calculating what is owed in each individual case.

Background

In the Industrial Tribunal, 3,380 police officers lodged claims against the Chief Constable of the PSNI and 364 civilian employees lodged claims against the Policing Board. The claims were brought under Article 45 and Article 55 of the Employment Rights (NI) Order 1996 alleging unlawful deductions from pay, and under Regulation 30 of the Working Time Regulations (NI) 1998 and Regulation 43 of the Working Time Regulations (NI) 2016 alleging underpayments.

The Industrial Tribunal adjudicated preliminary legal and jurisdictional issues on selected lead cases, leaving determination of awards for a later hearing. The present appeal is in respect of those preliminary legal and jurisdictional issues.

Court of Appeal

There were six issues identified by the parties for the courts determination:

1. Is a police officer a “worker” within the meaning of Article 3(3) of the of the Employment Rights (NI) Order 1996?

Lord Justice Stephens said police officers did not fall within the statutory definition of a worker in Article 3(3), but that police officers were “workers” within the autonomous Community law concept.  

2. Does the principle of equivalence require that they must be treated as being entitled to the remedy provided by Article 55 of the Employment Rights (NI) Order 1996 for unlawful deductions, or does it require that the remedy provided by Regulation 30 of the Working Time Regulations (NI) 1998 and Regulation 43 of the Working Time Regulations (NI) 2016 must be applied to afford a right to present a complaint with regard to a series of underpayments of holiday pay?

Lord Justice Stephens explained that the EU’s Community law principle of equivalence requires that national remedies for breaches of Community rights must be no less favourable than those available in similar domestic proceedings. He considered that proceedings under Employment Rights Order provisions constituted ‘similar proceedings’ to those under the Working Time Regulations and that the national remedies for breaches of Community rights under the Working Time Regulations were less favourable than those available in the similar domestic proceedings under the Employment Rights Order.

Lord Justice Stephens said that this was because the Working Time Regulations did not make the same provision affording a right to claim for a “series of underpayments” of holiday pay allowing such a claim to stretch back in time, and instead curtailed the Tribunal’s jurisdiction to dealing with claims under the three-month rule.

Although differing on the precise wording to be added, Lord Justice Stephens upheld the Tribunal’s finding that words should be read into the relevant provisions of the Working Time Regulations to make them comply with the principle of equivalence in this context.

3. Is the “series of deductions” provided for in Article 55 of the Employment Rights (NI) Order 1996 ended, as a matter of law, by a gap of more than 3 months between unlawful deductions and/or by a lawful payment or is the question of what is a “series” a question of fact to be decided on the facts of each case?

Lord Justice Stephens said that the three-month limitation contended for by the Chief Constable and Policing Board would lead to arbitrary and unfair results. Lord Justice Stephens concluded that on proper construction of the Employment Rights Order, the series was not broken by a gap of three months or more, and that identification of the factual link in the alleged series was what answers the question of whether correct payments of holiday pay breaks the series – in these cases the factual link was “the common fault of paying basic pay as holiday pay regardless of any consideration of overtime or allowances”.

4. Is one required to assume that the 4 weeks’ paid leave mandated by Regulations 13 and 16 of the WTR (NI) 1998, Regulations 15 and 20 of the WTR (NI) 2016 is taken first and exhausted before the worker draws on any (additional leave) entitlement under Regulations 13A of the WTR (NI) 1998 or Regulation 16 of the WTR (NI) 2016 or other sources of entitlement to annual leave?

Lord Justice Stephens agreed with the Tribunal that the leave entitlements were indistinguishable from each other, finding that a worker has an entitlement to all leave from whatever source and that there was no requirement for leave from different sources to be taken in a particular order.

5. If one is required to calculate a daily rate for overtime that forms part of a worker’s normal pay in order to calculate holiday pay that is due, is the lawful approach to divide the number of working days in the four weeks leave period (20) by the number of calendar days in the reference period or the number of working days in that period?

Firstly, Lord Justice Stephens said holiday pay should be calculated on the basis of weeks rather than days, as basing it on days would mean that the worker would receive a lesser amount. Overturning the Tribunal’s finding, Lord Justice Stephens concluded that the question of normal remuneration was a question of fact, and therefore best addressed in evidence before the tribunal in individual cases.

6. Having regard to the fact that the parties agree that the appropriate reference period for the assessment of normal pay is a question of fact in each case, is the court in possession of sufficient information to give the parties any assistance as to what is likely to be the appropriate period in the case of a claimant whose case contains no features particular to that person (for example, maternity absence, illness, reserve duty etc.)?

Encouraging the parties to agree to a “pragmatic, administration-friendly method” for calculating and paying “normal pay”, Lord Justice Stephens emphasised that this was a question of fact in an individual case, and that the court was not in possession of sufficient information to determine whether these facts do or do not apply.

• by Seosamh Gráinséir for Irish Legal News