Lawyer Comments On What It Means For Businesses

This issue of how much pay an employee is entitled to receive when taking holiday continues to cause headaches for employers. 

Following the decision in the case of Bear Scotland last year, many claims have been brought involving all forms of paid overtime (both compulsory and non-compulsory), commission and allowances. 

Many claimants expected their claims to be stayed pending resolution of test cases and appeals -most recently the Lock v British Gas which has been appealed to the Employment Appeal Tribunal.

Whilst this is the approach being taken in Scotland, some of the English and Welsh Employment Tribunals appear to be adopting a more robust approach with regard to overtime cases which are pleaded in very general terms but do not provide details about the amounts claims and how these have been calculated.  We are now seeing the effects of this in the claims we are dealing with.

Specifically, many Tribunals are now requiring claimants to set out which holiday days are being claimed for (we had previously asked Tribunals to do this), when they were taken and paid and what elements of pay were not included.  Claimants will need to refer to their pay slips and holiday records to properly do this and can’t simply expect their employers to do all the work (which is welcome news for employers)

Employers are then being asked to verify this information and include any details that are missing.

Once this information  has been provided, the Tribunals are then, it seems, listing cases for further Preliminary Hearings (later this year) during which the Tribunal will decide upon the next steps.  We get the impression that they are hoping that appeal decisions will be available by this time so that the cases that are going to be pursued can be set down for final hearings.

Expert Opinion

“This is potentially very helpful for employers and we hope will lead to poor or speculative claims, for example those that are clearly out of time due to the series of deductions being broken, being sifted out or abandoned at an early stage. It will also give employers a much better idea of the potential value of these claims and enable them to decide whether to settle at an earlier stage.

“As a firm, whilst we have a variety of claims, we have one case we are defending where the value is less than £50 and have found that some employees have unrealistic expectations about how much they can receive or have taken no notice as to what might break a series of deductions.

“Tribunal directions which require them to specify exactly what they are claiming and why (and place the workload and onus on them to show this), should expose the reality at an earlier stage, and before significant costs have been incurred.”
Glenn Hayes - Partner & National Head of Employment Law