Following the PSNI holiday pay case - what should employers do?

If an employer has not taken any action to recalculate holiday pay, what do you recommend they do now?

I think it was interesting following on from the last webinar that we did that the issues are fairly relevant and fairly out there, and certainly the poll tells us that there is steps that the employer needs to take. And what I said there originally was that it's not something that we can continue to ignore.

That said, I know, having spoken to a number of my clients, that there is a bit of burying the head in the sand attitude whenever I'm speaking to them. You know, they are saying, "What is the potential of this?" And, "None of my employees have come forward to me." But the reality is I do see it arising, particularly and around where there are issues that have developed in relation to your employees and that there are disciplinaries or that you're looking at the relationship breaking down and possibly a constructive dismissal claim has been taken.

Certainly, I've noticed over the past lot of months that there is an increase in these claims being made at that point, and it's maybe where there has been a relationship breakdown that said, "Oh, look. I'm entitled to this. I'm going to put my claim in."  Some of them have been union-backed, and maybe it is unions that have been bringing this to the employee's attention. But equally as well, I think, given the news coverage and everything else, people are aware.

An option is certainly one thing to do is to do nothing. For me, that's not advisable. I think that you need to take cognizance.  I mean, you can just see from the poll here, you know, almost a quarter of our employees are allied to this through our poll and doing nothing I don't think is a sensible route at this point.

Further Learning:

Holiday Pay FAQ & Update following the PSNI holiday pay case

Chief Constable of the PSNI & Northern Ireland Policing Board v Agnew & Others [2019]

Appeal of the PSNI case

Scott: The counterbalance to that is possibly they've asked for leave to appeal on this. And the Supreme Court might reverse elements.

Seamus: They could do. Certainly, where we were I think, on the last podcast, was that the decision we weren't clear whether or not an appeal was going to take place or not.  And we had said that there was rumours and whispers of that, and we thought that there was going to be an appeal. That has now since been confirmed. There is an application for leave to appeal, and just to explain that to maybe some of the listeners is that you have to make an application from the Court of Appeal through to the Supreme Court for leave to appeal. And essentially what the Supreme Court do is they look at the application and they consider whether it's something that they are going to hear a case on and issue a decision. So not all applications for leave to appeal are successful.

Scott: There's got to be value in it and merit and reason to use up the time of the Supreme Court judges.

Seamus: Absolutely and, you know, they like juicy apples in terms of that.  It has to be something that is attractive.

The reality here, I think, is that I would imagine that there either will be some keen interest from the Supreme Court, or there will be elements that they will be very attracted to. Certainly what we have at the minute is that we have our decision in Northern Ireland from the tribunal. It is being supported and backed and maybe some steps further taken in the Court of Appeal decision.  And then we have our Bear Scotland decision, which is applying to other parts of the U.K. So there is an opportunity here for the Supreme Court to give clarification on two cases that are not in agreement. I would think that that would be encouraging for the Supreme Court to move forward to consider the matter.

Scott: But one thing, even if they do reverse, you could do nothing. And that's one of the options here. But the Supreme Court is simply not going to reverse the fact that people are entitled to normal pay for at least the first 20 days, which is the Bear Scotland position. The least you can do, the least that you have to do is start averaging pay for at least 20 days in the year. So . . .

Seamus: Yeah, and that's a step that you should have been doing, you know, from about 2014, at this point. And if you read — Hannah and I were discussing this — and if you read through the decisions, they're critical. The courts are critical of employers that have not taken those steps as of yet, because that has been what the interpretation was and certainly what the LRA guidance has been telling employers to do and everything else. So that's not an impressive point, and I think that if you end up in a tribunal where you have sat back and done nothing, you're going to be criticised, at the very least, for it.

Scott: So if doing nothing isn't an option, what might be an option?

Seamus: I think certainly from the employer's point of view, I think absolutely incorrect to bury your head in the sand. The first thing that you should be doing is trying to identify what the position is within your business.