On 4th October 2023, the UK Supreme Court handed down judgment in the case of Chief Constable of the Police Service of Northern Ireland & PSNI another (Appellants/Cross-Respondents) v Agnew & others (Respondents/Cross-Appellants) (Northern Ireland) [2023] UKSC 33.
Background
Claims on behalf of thousands of Police Officers were initially presented to the Industrial Tribunal in Northern Ireland, with the decision issued in November 2018, in favour of the Claimants.
The PSNI appealed this decision to the Northern Ireland Court of Appeal, which ultimately dismissed the PSNI’s appeal and largely upheld the decision of the Industrial Tribunal. The PSNI appealed the NI Court of Appeal’s decision to the UK Supreme Court, which was heard in London in December 2022.
In a unanimous decision, the Supreme Court has dismissed the PSNI’s appeal and upheld the decision of the NI Court of Appeal.
For many years, Police Officers and civilian staff of the PSNI have been paid holiday pay based on their basic rate of pay, rather than their ‘normal pay’ which factors in regular overtime and certain allowances.
Civilian staff can bring claims under the Employment Rights (Northern Ireland) Order 1996 (ERO) and can therefore claim in respect of a ‘series’ of unlawful deductions, potentially going as far back as when the NI Working Time Regulations were implemented, in 1998.
Throughout this long running course of legal action, the PSNI maintained that Police Officers should not be permitted to lodge claims for a ‘series’ of unlawful deductions under the relevant provisions of the ERO as they are not classified as “employees” or “workers”.
UK Supreme Court Decision
Firstly, in applying the EU Principle of Equivalence, the Supreme Court upheld the decision of the NI Court of Appeal that Police Officers are entitled to claim in respect of a ‘series’ of unlawful deductions under the ERO. Police Officers can therefore claim for underpayment of holiday pay, going as far back as their start date, or 1998, whichever occurred more recently.
Furthermore, the Supreme Court, in disapproving the decision of the EAT in Bear Scotland Ltd v Fulton [2015] ICR 221 (EAT), held that a relevant ‘series’, for the purposes of an unlawful deductions claim, is not necessarily broken by a gap of three-months between such deductions.
The Supreme Court also held that the ‘series’ was not broken by a lawful payment of holiday pay. That a ‘series’ was a question of fact; where there was sufficient similarity and pattern to the deduction, it would constitute a series.
The definition of what a ‘series’ means will have far reaching implications not only for Police Officers, but workers generally, who believe they have suffered an unlawful deduction from their wages.
The Supreme Court also gave guidance on some consequential matters:
- When a worker takes annual leave, no distinction is to be drawn between what is known as ‘EU leave’ – the four weeks annual leave mandated by EU law – and the additional 1.6 weeks’ leave required by domestic law. All leave to which a worker is entitled must form part of a single, composite pot; and
- When calculating the daily rate of normal pay, it is not appropriate to use the number of calendar days in a year. What constitutes ‘normal’ remuneration is a question of fact, just as the reference period is a question of fact, and both should be addressed in evidence in individual cases.
What Now?
This Supreme Court Judgment is now the end of the line for the PSNI, with all claims reverting back to the Industrial Tribunal to determine their value.
The implications of this Judgment are far reaching beyond the PSNI and will likely apply to both the public and private sectors across Northern Ireland and the rest of the UK.
For any further information, advice and guidance on the practical steps to be taken, please email our office at holidaypay@edwardsandcompany.co.uk.
