Many UK workers could be entitled to thousands of pounds unfairly taken from their pay following a landmark Supreme Court ruling on Wednesday in a successful challenge brought by UNISON.
Prior to this, workers who consistently received incorrect pay could only make a claim at an employment tribunal for the most recent underpayment. They could also include similar underpayments on previous occasions, but not if there was a gap of three or more months between them.
The ruling means many workers will now be able to challenge ongoing linked underpayments in their wages.
They will be able to do this even if there is a gap of three months or more since the last time this happened, says UNISON. They weren’t able to do so previously.
The judgment in Chief Constable of the Police Service of Northern Ireland and another v Agnew and other & UNISON overrules holiday pay case law operating since 2015.
This had prevented tribunals from considering deductions where there had been a gap of three months or more between a series of similar underpayments for an employee.*
The facts of the case focused on holiday pay, where it will be applied most widely. However the ruling affects all other forms of payment too**, says UNISON.
The Supreme Court drew attention to the purpose of the unlawful deduction provisions in protecting workers – some of whom may be vulnerable – from being paid too little for the work they do.
Commenting on the ruling, UNISON head of legal Shantha David said:
“UNISON’s intervention has ensured the law has now been corrected. The previous interpretation meant workers couldn’t get compensation where a series of similar underpayments had happened three or more months apart.
The Supreme Court understood here that this could allow some employers to game the system by spacing out holiday payments over more than three months. For years, many workers have been denied unfairly the chance to have their legitimate claims heard. This judgment ensures they’ll get all the wages they’re rightfully owed.”
– The case, Chief Constable of the Police Service of Northern Ireland and another v Agnew and other, originated in Northern Ireland where it was heard by the Court of Appeal in Northern Ireland. UNISON intervened at the UK Supreme Court, and led the arguments in court on the side of the workers and employees.
– *Employees must lodge a case within three months of what they believe is an unfair deduction. However, if it is part of a “series” of similar underpayments these can also form part of the claim. However, since the 2015 employment appeal tribunal case of Bear Scotland Ltd v Fulton, tribunals have not been able to consider the underpayments as a series if they were three or more months apart. Today’s ruling clarifies that a three-month break does not interrupt a series of claims for underpayment.
– **The issue affects any employee and applies to claims on all forms of wages. For holiday pay, commission and bonuses the “series” is limited by statute to two years in Great Britain but not in Northern Ireland. For other payments including statutory sick pay, statutory maternity/paternity/adoption pay and time off for union duties, the claim can go back to when the underpayment first began.