Agnew Anderson and others v Chief Constable of the Police (Working Time Regulations) [2018] NIIT 00112

THE INDUSTRIAL TRIBUNALS

CASE REFS: 112/16 & Ors

CLAIMANTS: Alexander Agnew and Others

RESPONDENT: Chief Constable for the Police Service of Northern Ireland

CLAIMANTS: David Brian Anderson and Others

RESPONDENT: Police Authority for Northern Ireland

DECISION

The unanimous decision of the tribunal is that:

(i) The police officer claimants are not “workers” as defined in Article 3 of the Employment Rights (NI) Order 1996 (“the 1996 Order) as a matter of domestic interpretation, and therefore cannot, as a matter of domestic law alone, claim in respect of an alleged series of unlawful deductions under Articles 45 and 55 of that Order.

(ii) The European principle of equivalence does apply to a comparison between the procedure and remedy available to police officer claimants in the present cases under the Working Time Regulations (Northern Ireland) 1998 and 2016 (“the Working Time Regulations”) and the procedure and remedy available to claimants seeking the recovery of unpaid wages as a domestic (non-European) matter under the 1996 Order.

(iii) The tribunal, applying that principle of equivalence, reads words into the Working Time Regulations, as set out in this decision, to enable police officer claimants to exercise their rights under the Working Time Directive in an equal manner to other workers in relation to a series of underpayments of holiday pay.

(iv) To determine normal pay for the purposes of holiday pay entitlement;

(a) the appropriate reference period or periods cannot be fixed in an arbitrary or general fashion. It depends on the facts of each individual case and will vary in relation to the normal pattern of employment and the normal pattern of overtime worked. That will require an individual analysis of each case. (However, in many cases, a 12 month period would appear to be appropriate).

(b) As part of an individual analysis of each case to determine the appropriate reference period, absences from work such as absences related to maternity, maternity related illnesses, disability related absences, reserve forces deployment or personal choice will need to be taken into account when determining an appropriate reference period for each case.

(c) Allowances paid to civilian employees, other than meal overtime allowances, form part of normal pay for the purposes of the calculation of holiday pay.

(d) Payments as a result of voluntary overtime worked by civilian employees form part of normal pay for the calculation of holiday pay.

(v) (a) Langstaff J, was, with respect, incorrect in Bear Scotland v Fulton [2015] CMLR 40 to determine that any “series” for the purposes of the GB equivalent to Articles 45 and 55 of the 1996 Order is automatically broken by a gap of three months.

(b) The existence of such a “series” has to be judged on an individual case by case basis and is not automatically broken by any gap; including gaps due to absence related to maternity, maternity related illness, disability related illness, a reserve forces call-up or personal choice.

(c) Such a “series” is not automatically broken by “compliant” holiday pay calculations or by such calculations in respect of which there is no tribunal complaint.

(vi) Average pay including overtime or allowances in an appropriate reference person should be calculated by reference to calendar days and not working days.

(vii) The 20 days leave provided by the Working Time Directive, the 8 days leave provided to the Working Time Regulations and the 2 days leave provided by the conditions of service are indistinguishable from each other. Each day of leave taken should therefore be distributed proportionately between the three sources of leave; ie 20/30 Working Time Directive, 8/30 Working Time Regulations and 2/30 conditions of service.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mrs Dorothy Adams LLM

Mr Iain Foster

Appearances:

The claimants in both sets of claims were represented by Mr David McMillen Queens Counsel and Mr David Hopkins, Barrister-at-Law, instructed by Edwards & Company Solicitors and by McCartan Turkington Breen Solicitors.

The respondents in both sets of claims were represented by Mr John Beggs, Queens Counsel, Ms Rachel Best, Barrister-at-Law and Mr Aaron Rathmell, Barrister‑at‑Law, instructed by the Crown Solicitor’s Office.

BACKGROUND

1. The claimants in the first group of claims are police constables or sergeants in the PSNI. For the purposes of brevity, this decision will refer to them as police officers. The claimants in the second group of claims are civilian employees engaged in a variety of roles by the police authority. They assist the PSNI. For the sake of brevity, this decision will refer to them as civilian employees.

2. Both sets of claims commenced in or around 2016 after the decision of the Employment Appeal Tribunal in Bear Scotland Limited v Fulton [2015] 1 CMLR 40.

3. Both sets of claims allege that overtime payments and, in the case of the civilian employees, certain allowances, were not included by the respondents in the calculation of normal pay for the purposes of holiday pay entitlement. The claims relate solely to the 20 days annual leave provided by the Working Time Directive and do not relate to the further eight days provided by the Working Time Regulations or to the additional days provided as part of the conditions of service, (in the present cases, generally two days).

4. Both sets of claimants allege that the relevant underpayment of holiday pay amounted to (i) a breach of the Working Time Directive (2000/88/EC) and the Working Time Regulations (Northern Ireland) 1998 and 2016, and (ii) unauthorised deductions from wages contrary to the Employment Rights (Northern Ireland) Order 1996.

5. The number of claims currently exceeds 3,700. They raise a variety of different points of law. Those points of law provoked opening written submissions from the claimants, two opening written submissions from the respondents, closing written submissions from both the claimants and the respondents and further written submissions from both the claimants and the respondents. All of that was supplemented by extensive and detailed oral submissions on those points of law. Rather than recording in detail the submissions advanced on behalf of the parties, those written submissions, numbered 1 to 7 in the order in which they were submitted are attached to this decision.

6. Those points of law include questions of jurisdiction; namely (i) whether the tribunal has jurisdiction to hear claims lodged by police officers under Articles 45 and 55 of the 1996 Order, either on a proper interpretation of the domestic wording of that Order, or by reading that Order in accordance with the principle of equivalence, or (ii) whether the tribunal has jurisdiction to hear claims lodged by police officers under the Working Time Regulations in relation to a series of alleged deductions.

7. Other points of law relate to how “normal pay” is to be calculated in relation to the individual claimants, including what overtime payments or allowances are to be included as “normal pay”, what reference period or reference periods should be used to calculate that normal pay, how that calculation is to be made etc.

8. Those points of law need to be determined at this level and, inevitably, at subsequent appellate levels, before the claims can be determined or settled.

9. The claimants have not provided worked up calculations of alleged financial loss on behalf of each of the claimants. The claimants are seeking payment of allegedly underpaid holiday pay over substantial periods; in each case back to either 1998, when the Working Time Regulations came into force, or back to the date on which the relevant police officer or civilian employee commenced service, whichever is later. Any worked up calculations of alleged financial loss would require a detailed analysis of each application for annual leave, and of each occasion on which overtime was worked and of each occasion on which allowances were claimed by each of the relevant employees over a substantial period of time. That analysis will have to be conducted on a day by day basis. Given the paucity of records, that may well be difficult and time-consuming.

10. In any event, specific worked up calculations, even in respect of the lead claimants, may be entirely pointless given the number of legal issues which have to be determined and in respect of which the claimants and respondents hold entirely different and entrenched views. If such worked up calculations were to be ordered, they would take some considerable time to prepare and in any event may well consist, at least partly, of estimated figures. Further time would then have to be allowed for rebuttal calculations; all of this would have to be done where the ground rules for such calculations are in serious dispute. A great deal of time could be wasted when the legal issues would still have to be determined and then tested through the various appellate levels.

11. The tribunal further considered whether it should simply separate the jurisdictional issues and deal with those as separate preliminary issues at a Pre-Hearing Review. If those jurisdictional issues were decided in the respondents’ favour, it could potentially dispose of a large number of the claims brought by police officers. Leading counsel for the respondents indicated that if the jurisdictional points were determined in favour of the respondents, it could result in a number of what he termed “micro claims” which would probably be easily resolved. The remaining issues, in relation to the civilian employees, could then be determined separately.

12. However, if the jurisdictional issues were to be dealt with separately, that would inevitably result in lengthy satellite litigation on those jurisdictional issues, as one party, or even both parties, tested any tribunal decision on appeal. That lengthy satellite litigation would have to be determined and then brought back to tribunal level before the other issues could then start their own lengthy progress through tribunal determination and then appeal. It would further delay the determination of these claims for years.

13. The tribunal is also conscious that the significant number of claims involved in this multiple, and the fact that the factual circumstances behind each such claim vary to such a significant extent, mean that separate remedies hearings, on the assumption that the liability issues can be determined, would take a significant period. If each claim resulted in a remedies hearing which took two days to hear and to determine, several decades would have to be spent by a single tribunal. Therefore this multiple, keeping in mind the overriding objective of determining claims with the minimum of delay and expense, is the sort of multiple where, if the legal issues were to be clarified at this stage, the parties must make the maximum effort to resolve the outstanding issues between themselves without further recourse to this tribunal.

14. The tribunal is also conscious that the Court of Appeal in Patterson v Castlereagh Borough Council [2015] IRLR 721 felt that it had been unfortunate in that case that a worked out and specific claim of financial loss had not been presented to the tribunal. The Court felt that this had prevented vital evidence being before the tribunal at the liability stage.

The tribunal is satisfied that this is not the case in relation to the present multiple.

15. In Patterson, the claim before the Court concerned one relatively straightforward issue which was, in any event, ultimately conceded, ie whether or not payments for voluntary overtime were to be included within normal pay. The missing evidence which concerned the Court, was that this would have led in relation to the lead case to a significant loss of £60 per week.

16. In the present multiple, it is not in dispute that the non-inclusion of overtime payments and of allowances in the holiday pay calculations has resulted in significant losses to the lead claimants and indeed to other claimants. The particular extent of any such loss in relation to any such claimant will require a detailed analysis, hopefully in the context of settlement negotiations, to the extent that such negotiations are required by the determination of the legal issues.

Unlike Patterson, it is clear that in at least some cases in the multiple, the exclusion of overtime payments and allowances from the calculation of normal pay will have had significant effects.

17. The tribunal is therefore faced with a dilemma. Should it further delay matters significantly by ordering specific worked out calculations of alleged financial loss, on the basis of possibly erroneous legal principles?; or should it determine the legal issues put before it on the basis that significant potential financial implications are involved, without knowing the precise financial losses which are alleged in each individual case?; those precise amounts being inevitably in dispute in any event.

18. The overriding objective points the tribunal towards determining these claims with the minimum of cost and delay. These legal issues need to be resolved and tested on appeal, before settlements or remedies hearings can be considered. The probability of settlements in these claims appears high once the legal issues in relation to liability have been resolved. It is important that this process starts now.

19. The tribunal therefore concludes that it should determine the legal issues put before it by the parties. Once the inevitable appeal process is exhausted, the claims, or most of them, will in all probability be settled between the parties. Any remaining claims can then proceed to remedies hearings. Hopefully there will not be any such claims.

20. Those legal issues can be split into two areas; “jurisdiction” and “the extent of remedy”.

Jurisdiction

(i) Whether the police officer claimants are “workers” as defined by Article 3 of the 1996 Order, as a matter of domestic interpretation, and therefore whether

they can claim, as a matter of domestic law, in respect of an alleged series of unlawful deductions under Articles 45 and 55 of that Order?

(ii) If not, does the European principle of equivalence apply in the circumstances of the present claims, given the differences between the remedy available to the police officers claimants under the Working Time Regulations, and the remedy available to civilian employee claimants under Articles 45 and 55 of the 1996 Order, or on the basis of any other comparison?

(iii) If the doctrine of equivalence does apply in relation to the comparison between the remedy afforded to police officer claimants under the Working Time Regulations and the remedy afforded to the civilian employee claimants, under the 1996 Order or on the basis of any other comparison, can the tribunal interpret the legislation in such a way as to assume jurisdiction under the 1996 Order in respect of claims brought by police officers under Articles 45 and 55 of the 1996 Order, or to extend the remedy available to the police officer claimants under the Working Time Regulations?

Extent of Remedy

(iv) How is normal pay to be determined for the purposes of holiday pay entitlement under the Working Time Directive, the Working Time Regulations or the 1996 Order?

(a) What is the appropriate reference period or periods over which normal pay should be determined?

(b) Should that reference period be varied or extended in individual cases to take account of maternity related absences, disability related absences, or absences related to a reserved forces call-up? Can other reasons for absences from work be the reason for extending the reference period in any particular case?

(c) What allowances paid to civilian employees form part of normal pay for the purposes of the calculation of holiday pay?

(d) Is voluntary overtime worked by civilian employees to be included as normal pay for the calculation of holiday pay and, if so, in what circumstances?

(v) In respect of any claimant who can claim under Articles 45 and 55 in the 1996 Order, how is a “series” of deductions to be defined?

(a) Was Langstaff J. correct in Bear Scotland v Fulton [2015] CMLR 40 to determine that any such “series” is automatically broken by any gap of three months between relevant deductions? ie between relevant calculations of holiday pay?

(b) Is a “series” of deductions broken where a gap in relevant deductions was due to a maternity related absence, a disability related absence, or an absence because of reserved forces call up? Is a “series” of deductions broken where the gap was simply a matter of personal choice?

(c) Is a “series” of deductions broken when there are compliant deductions in relation to holiday pay calculations; ie where holiday pay is calculated without including overtime or allowances in respect of the eight days provided by the Working Time Regulations or the additional days provided as part of the conditions of service applicable to either a police officer or a civilian employee?

(vi) Should the average overtime or allowances over an appropriate reference period in each individual case be calculated by reference to calendar days within that reference period or by reference to working days within that reference period?

(vii) In assessing the average overtime in respect of annual leave relevant to the present claims (the 20 days provided by the Working Time Directive), is it the case that;

(a) the first 20 days taken in an annual leave period are to be regarded as the 20 days provided by the Working Time Directive? Are the next 8 days taken in an annual leave period to be regarded as the leave provided by the Working Time Regulations? Are the additional days contained within the conditions of service to be taken next? In other words, is there a strict order of succession in relation to the three types of annual leave? or

(b) the 20 days provided by the Working Time Direction are distributed proportionately, and therefore each annual leave day taken by a police officer or civilian employee is split between the three types of annual leave as 20/30 WTD, 8/30 WTR and 2/30 conditions of service? or

(c) the 20 WTD days, the 8 WTR days and the (usually) two conditions of service days are indistinguishable from each other and form part of a composite whole of 30 days annual leave? If so, how does that effect the current claims?

Procedure

21. The two groups of claimants, police officers and civilian workers, lodged claims from 2016 onwards following the decision in Bear Scotland. The first group of claimants, the police officers, has repeatedly lodged claims every three months to keep their claims current in case their only claim before this tribunal is under the Working Time Regulations which restricts backdating of each such claim to three months.

22. There has been a detailed case management procedure with a total of six Case Management Discussions. The claimants have listed fourteen lead claimants who reflect a variety of alleged losses and a variety of legal issues which need to be determined.

23. The respondents put forward a further eight claimants as examples of claimants who worked generally lower levels of overtime and who claimed generally lower levels of allowances. Those examples were contained in a supplementary witness statement exchanged just before the hearing of this matter; a hearing which had been listed for some considerable time.

24. The levels of overtime and allowances shown in the claimant’s lead cases and in the respondents examples are not in dispute between the parties; at least at this stage.

They simply show a position that appears to the tribunal to be clear. The calculation of holiday pay by the two respondents in respect of police officers and civilian employees did not reflect levels of non-guaranteed overtime, voluntary overtime and allowances. That reduced the levels of holiday pay for the 20 days of annual leave guaranteed by the Working Time Directive. It also reduced the levels of holiday pay paid in respect of the eight days provided by the Working Time Regulations and the two days provided by the conditions of service. However those two types of annual leave are not the subject of the current claims which are restricted solely to the 20 days annual leave provided by the Working Time Directive.

25. That method of calculation of holiday pay involved a substantial financial loss for some claimants and a less substantial financial loss for other claimants. The extent of those losses will have to be either agreed or determined in each individual case if and to the extent that any such losses are legally due and recoverable. As indicated above, that exercise of individual analysis will require a herculean effort and the provision of endless spreadsheets in respect of each individual claimant.

26. The witness statement procedure was directed. The 14 lead claimants and a Police Federation representative provided witness statements. That Federation representative and the first three lead claimants swore or affirmed to tell the truth, adopted their witness statements as their evidence in chief and were cross-examined and re-examined.

27. At that point the hearing, the parties agreed that the statements of the remaining 11 lead claimants would simply be entered into evidence without the need for them to swear or affirm to their statements and without the need for cross-examination.

28. In accordance with directions, the respondents had exchanged four witness statements; two from Mr King, an accountant employed by the PSNI and one each from a Ms Ramsay and a Chief Inspector McCauley.

29. Mr King swore or affirmed to tell the truth and adopted his two witness statements as his evidence in chief. He was then cross-examined and re-examined.

30. At that point the parties agreed that the statements of Ms Ramsey and Chief Inspector McCauley should be entered into evidence without the need for them to swear or affirm to those statements and without the need for cross examination.

31. The parties have provided substantial documentation to the tribunal. It comprised four lever arch folders, a separate bundle of witness statements amounting to some 163 pages, and an opening submission from the claimants and two opening submissions from the respondents. That extensive documentation was added to continually throughout the hearing. There were two closing written submissions and two further written submissions for both the claimants and from the respondents.

32. The hearing commenced on 25 September 2018. On that date, the panel spent that day reading the witness statements and, to the extent necessary, parts of the documentation provided by the parties. The tribunal also read the opening submissions.

33. On 26 and 27 September 2018, the tribunal heard the evidence as indicated above.

34. The parties submitted their closing written submissions by 10.00 am on 1 October 2018. Those were read by the tribunal between 10.00 am and 12.00 noon on that date. Oral submissions on behalf of the claimants commenced at 12.00 noon. Oral submissions on behalf of the respondents were heard on 2 October 2018.

35. The parties were permitted to exchange and lodge any further written submissions that they felt were required by 15 October 2018. They did so.

36. The tribunal met on 29 and 31 October 2018 to consider the evidence and the submissions and to reach its decision. This document is that decision.

Relevant Findings of Fact

37. The tribunal is faced with an entirely unsatisfactory position. The EU and domestic legislative provisions are unclear and less helpful than they might have been. It would have been a relatively simple task for at least the domestic legislation to set out clear, albeit necessarily arbitrary, rules for determining how normal pay is to be determined in each individual case. There would of course have been winners and losers. However employers and employees would at least have known with reasonable clarity the extent of their liabilities and of their rights. It could have avoided much of the current litigation. It could have defined more closely how normal pay should be calculated. It could have defined what a “series” meant in the 1996 Order, rather than leaving it to judicial interpretation and, in many cases to individual analysis depending on the facts of each particular case.

In short, the legislature could have avoided a situation where, even after years of holiday pay litigation, employers and employees are unclear how to approach the calculation of holiday pay.

38. However, we are where we are. The parties in these cases are in dispute over how holiday pay should have been calculated. The claimants allege recoverable losses going back to the date on which each individual claimant first was paid holiday pay or to 1998, whichever is later. The amounts of money involved, on the calculation of the respondents, varies between £300,000 and £30 million, depending on the determination of the legal issues. The individual losses to each claimant are alleged to amount in some cases to several thousand pounds.

39. As indicated above, these claims will need to be assessed individually. That poses the practical difficulties referred to above. The parties have indicated that, if the legal issues are clarified, and that will inevitably involve appellate decisions, a sensible approach should be taken, and the number of individual hearings will be drastically reduced; hopefully to zero.

40. The relevant findings of fact for the purposes of the present decision are therefore at a general and not at an individual level. They are sufficient to support the determination of the legal issues so that these claims can progress, hopefully to a negotiated settlement, at the appropriate level and on the appropriate basis.

Police Officer Claimants

41. The relevant police officer claimants are constables or sergeants in the PSNI. Each is provided with an annual duty roster which specifies a core duty requirement of 2080 hours of duty annually.

42. There are different duty patterns for different groups of police officers. Those officers engaged in back office functions generally work an 8 hour/5 day pattern. Police officers in local policing teams generally work a 10 hour variable shift pattern. Teams of officers such as custody sergeants work a 12 hour shift on a 4 on/4 off pattern. There are several other patterns of duty applicable to different types of police officer.

43. Each individual officer has access to the Options computer system. That system notifies overtime which is required beyond initially rostered hours. It also enables officers to record overtime as worked and to apply for annual leave. Additional amounts of overtime can also be notified verbally to individual officers.

44. Overtime for police officers is not guaranteed but once notified, each officer is obliged to work the notified overtime (non-guaranteed overtime). Depending on the circumstances of the posting of each individual officer, overtime can range from minimal to substantial. It can be evenly spread out over the calendar year or it can be particularly substantial at particular times of the year; eg July and August.

45. Overtime can be required when a shift has to be continued beyond the original rostered finishing time – eg to complete an RTA investigation. It can also be required because of “backfilling” where other officers had been transferred, promoted or are absent on sickness or maternity leave or for training. Overtime can also be required in particular geographical areas to deal with local problems such as a local paramilitary feud. It can be required as a result of predictable and regular events such as the marching season or by particular sporting or other cultural events.

46. Overtime can be a significant part of the earnings of individual police officers. However it obviously varies from officer to officer and from district to district. It also varies at different times of the year and in response to different events and to different political climates.

47. As a broad indication of the level of average overtime worked in 2015-2016, the figures are per district for constables and sergeants;

District Policing £6,589.00

Belfast Area £10,108.00

South Area £5,059.00

North Area £5,343.00

Crime Operations £7,158.00

Operational Support £9,347.00

Legacy and Justice £3,001.00

Other £4,219.00

48. In 2015-2016 the average amount of overtime earned by a constable or sergeant, taken over the entire PSNI, amounted to £7,118.00. Basic pay for constables for 1 September 2017 ranged from £23,124.00 to £38,382.00, depending on length of service. For the same date, the pay scales for sergeants ranged from £39,693.00 to £43,143.00 depending on length of service. Taken as an average, therefore, the amount of average overtime is a significant proportion of overall pay for police officer claimants. In relation to some police officers, it can be significantly higher than the average. Conversely, it obviously can be significantly lower than the average in relation to other police officers.

49. Police officers are paid overtime at various rates. These are:

(i) time and a third – pre detailed standard overtime on a normal working day

(ii) time and a half – overtime on rest days

(iii) double time – overtime directed at short notice on public holidays or rest days

(iv) time and a third – casual overtime

50. Police officers are currently entitled to 240 hours annual leave for each leave year. The leave year runs from 1 April each year to 31 March the next year. That equates on an eight hour day to 30 days. It comprises 20 days provided by the Working Time Directive, eight days provided by the Working Time Regulations and (usually) two days provided by conditions of service.

51. As indicated above, no specific worked out calculations of claimed loss have been provided in respect of any claimant. For the reasons set out above, the tribunal has decided not to order any such specific worked out calculations at this stage. The determination of those legal issues is a necessary basic step to enable these claims to move forward to a resolution between the parties. The relevant findings of fact contained within this section of the judgment are sufficient to establish that the legal issues are real and that they require resolution before the claims can move forward.

52. Constable Agnew is in the Close Protection Unit (CPU). He appears to have worked significant and regular overtime throughout his career amounting to between 25% and 50% of his basic pay. He has not had any breaks of over three months in the series of allegedly unlawful deductions from holiday pay which arise out of the respondents’ failure to include overtime in the calculation of normal pay. His ET1 was lodged on 14 December 2015.

If his claim can only be made under the domestic interpretation of the Working Time Regulations he can therefore only go back for three months from that date in respect of allegedly incorrect holiday pay calculations. He had taken annual leave in the relevant period and had worked significant overtime in that period.

If however his claim may also be made under Articles 45 and 55 of the 1996 Order, he has a potential and significant claim going back to 1998. Since there is no break, on the records that we have seen, in the series of allegedly unlawful deductions which has lasted for more than three months, then on his argument the “series” of deductions, however “series” is defined, remains unbroken.

53. Constable Bond is in the Tactical support Group (TSG). He started service in 2014 and his ET1 was lodged on 2 December 2016. He worked significant levels of overtime throughout his career. If his claim is only under the domestic interpretation of the Working Time Regulations, his claim is restricted to allegedly unlawful deductions from holiday pay within the three months before the date on which he lodged his claim. He had taken annual leave in that period and had worked significant overtime in that period.

However if his claim may also be made under Articles 45 and 55 of the 1996 Order, his claim potentially goes back to his commencement of service in 2004. In his case, he has three gaps in the series of allegedly unlawful deductions which each exceed three months. One gap was due to promotion. One gap was due to a decision on his part to save leave for the birth of a child and one was due to personal choice. Other lead claimants have similar gaps in the alleged “series” of unlawful deductions.

54. Constable Jenkins is based in Maydown. He commenced service in 1994 and lodged an ET1 on 11 November 2016. He has worked significant overtime throughout his career.

If his claim is only under the domestic interpretation of the Working Time Regulations he can only go back for three months from the date on which he lodged his claim. He had taken annual leave in that period and had worked significant overtime in that period.

If however his claim is under Articles 45 and 55 of the 1996 Order, his claim potentially goes back as far as 1998. In his case there is however a three month break in the alleged series of allegedly unlawful deductions because of sickness between October and December 2013. Other lead claimants have similar absences from work, leading to possible breaks in the alleged series of unlawful deductions, for similar reasons.

55. Constable Kelly is based in Holywood. He commenced service in 1997 and lodged his ET1 on 3 October 2016. He had worked significant overtime throughout his career.

If his claim is only under the domestic interpretation of the Working Time Regulations he can only go back for three months from the date on which he lodged his claim. He had taken annual leave and had worked significant overtime in the relevant period.

If however his claim is also under Articles 45 and 55 with the 1996 Order, his claim could potentially go back as far as 1998. However there are several gaps in the alleged series of unlawful deductions which each succeed three months. Leave was not taken during those gaps in the alleged series as a matter of personal choice. Other lead claimants have had similar gaps in their alleged series of unlawful deductions for similar reasons.

56. Constable McCullough is based in the TSG. He commenced service in 1994 and lodged his ET1 on 24 November 2016. He has worked significant overtime throughout his career.

If his claim is only under the domestic interpretation of the Working Time Regulations he can only go back for three months from the date on which he lodged his claim. He had taken annual leave and had worked significant levels of overtime in the relevant period.

If his claim is however also under Articles 45 and 55 of the Employment Rights Order, his potential claim goes back as far as 1998. However there are several gaps in the alleged series of unlawful deductions which each exceed three months. The claimant may have suffered a disability within the meaning of the Disability Discrimination Act 1995. Some of the gaps are a result of sickness absence. Some are as a result of injury on duty. Other lead claimants have had similar gaps in the alleged series of unlawful deductions for similar reasons.

57. Constable Scott is based in the CPU. He commenced service on 10 January 2007 and lodged a claim on 2 June 2017. He has worked significant overtime throughout his career.

If his claim is only under the domestic interpretation of the Working Time Regulations, he can only go back three months from the date on which he lodged his claim. He had taken annual leave and had worked significant overtime during the relevant period.

If his claim is also under Articles 45 and 55 of the 1996 Order, his claim potentially goes back as far as 10 January 2007. However there are several gaps in the alleged series of unlawful deductions which each exceed three months. They include a period of 12 months as a result of a reserved forces mobilisation during which he was posted to Cyprus. There is also one such gap as a result of a broken wrist and one such gap which was a matter of personal choice.

He is the only lead claimant with such a gap as a result of a reserved forces mobilisation. However other lead claimants have had gaps in their alleged series of unlawful deductions because of injury or illness or because of personal choice.

58. Other police officer claimants will have had gaps which each lasted more than three months in their alleged series of unlawful deductions which occurred because of maternity absence, because of maternity related illnesses.

Civilian Employee Claimants

59. This group of claimants comprises police support staff employed by the second respondent. That respondent recognises and accepts that they are employees for the purposes of both the Working Time Regulations and the 1996 Order. That respondent also therefore accepts that they can pursue claims in respect of alleged unauthorised deductions from wages and incorrect calculations of holiday pay under both the Working Time Regulations and the 1996 Order.

60. The group comprises a range of different employment types, including forensic investigators, crime scene surveyors etc.

61. For this group of employees, overtime can be either voluntary overtime or non-guaranteed overtime (which, once notified, is compulsory). The distinction between the different types of overtime worked on each particular occasion by each particular civilian employee will, if necessary, have to be assessed on a case by case and a day by day basis.

62. The civilian employees receive various allowances which are part of the present claims. Much of the argument before the tribunal centred on the police officer claimants who comprised the bulk of this multiple. The precise type of allowances claimed by the civilian employees was therefore not the focus of any extended argument. On looking at the documentation in detail after the hearing, it has emerged that there is a significant difference in terminology between that used by the lead claimants who are civilian employees and that used in the documentation to which the tribunal was referred. However the tribunal believes that the position is as follows in relation to those allowances. Those allowances are;

(i) on call allowances or standby allowances which are paid at different rates depending on whether the on call or standby duty was during weekends or week days;

(ii) premium payments for Saturdays and Sundays which are paid where the civilian employee works for up to eight hours at the weekend;

(iii) meal overtime allowances which are a set payment for working more than three hours past normal finishing time and are in respect, at least notionally, of the cost of obtaining a meal away from home. A receipt is not required from the civilian officers in respect of any such allowance;

(iv) late night duty allowances which are paid in addition to overtime rates for working between 8.00 pm and 11.00 pm (1/4) or between 11.00 pm to 6.00 am (1/3).

63. Overtime pay, both voluntary overtime and non-guaranteed overtime, and payment of the above allowances formed a significant part of the pay of some civilian employees. Obviously, that varied from employee to employee and varied from time to time.

64. According to the Staff Handbook for civilian employees, on call allowances or standby allowances are payable where the officer has “a specific rostered commitment to be on on call or on standby”.

65. “On call” is defined as a commitment to remain continuously and immediately available at home outside normal office hours for a period of more than 12 hours.

66. “Standby” is defined as a commitment to remain at the employee’s place of work overnight after a full day’s work in order to be immediately available if needed.

67. On call rates in general are per 12 hour period £4.90 for week days, £14.00 for Saturday/Sunday and £17.73 for public holidays and bank holidays.

68. Standby rates are £11.64 for week days, £33.40 for Saturdays/Sundays and £41.92 for public holidays and bank holidays.

69. Both on call rates and stand by rates are classified as pensionable payments.

70. Premium payments for working on Saturdays and Sundays are payable in addition to basic pay for working the basic eight hour shift on those days. It is impossible to ascertain from the mass of documentation presented to the tribunal the actual rate of these payments. Hours over the basic shift hours on those days are paid at an enhanced overtime rate of a time and a third for Saturday and at double time for Sundays.

71. The overtime meal allowance is currently £3.25. As indicated above no receipts are required from the individual civilian employee. The allowances are liable to income tax and national insurance contributions. The civilian employees can in certain circumstances seek approval of actual receipted expenditure on a meal if that expenditure exceeds £3.25. However any such payment would also be liable to income tax and national insurance contributions.

72. The late night duty allowance, which appears to be described in the Handbook as the night duty allowance, applies to certain civilian staff who work at night when they are not rostered to do so. It is paid as a percentage addition to the basic pay rate at either 25% or 33.33%. Overtime rates are payable in addition. It is solely related to working outside rostered hours at certain times in the day. It is regarded as a pensionable payment.

73. Mr Edgar (2494/16) is a crime scene surveyor. He commenced employment in 1991 and lodged a claim on 5 August 2016. He has worked significant amounts of overtime and has claimed allowances at various times during his career. Since he is an employee he can claim under both the Working Time Regulations and the 1996 Order. In relation to the latter claim, there are gaps of longer than three months in the series of alleged unlawful deductions in relation to holiday pay where he was unable to take annual leave because of illness or because of an injury on duty.

74. Ms Graham (3002/17) is a major crimes forensic advisor. She commenced employment in 1994 and lodged a tribunal claim on 25 August 2016. She has worked significant amounts of overtime and has claimed allowances at various times in her career.

Since she is an employee she can claim under both the Working Time Regulations and the 1996 Order. In relation to the latter claim, there are gaps of longer than three months in the alleged series of unlawful deductions in relation to holiday pay where she was unable to take annual leave because of maternity absence, maternity related sick absence and absences for cancer treatment and stroke treatment.

RELEVANT LAW

Working Time Directive

75. Directive 2003/88/EC issued on 4 November 2003 and replaced Directive 93/104/EC of 23 November 1993 in relation to the organisation of working time.

76. Article 7 of the 2003 Directive provides;

“1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

2. The minimum period of unpaid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.”

77. Council Directive 93/104/EC was in similar terms.

78. The 2003 Directive provides in the preamble;

“(1) Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, which lays down minimum safety and health requirements for the organisation of working time, in respect of periods of daily rest, breaks, weekly rest, maximum working time, annual leave and aspects of night work, shift work and patterns of work has been significantly amended. In order to clarify matters a codification of the provisions in question should be drawn up.

(2) Article 137 of the Treaty provides that the Community is to support and complement the activities of the Member States with a view to improving the working environment to protect workers’ health and safety. Directives adopted on the basis of that Article are to avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium sized undertakings.

(4) The improvement of workers’ safety, hygiene and health at work is an objective which would not be subordinated to purely economic considerations.”

Working Time Regulations (Northern Ireland) 1998

79. Those Regulations came into operation on 23 November 1998 and implemented the 1993 Directive.

80. Regulation 13 of the 1998 Regulations provided for the entitlement to annual leave and for the fixing of annual leave years. It related solely to the entitlement to annual leave. Payment for such leave was dealt with separately.

81. Regulation 16(1) provided that

“A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under Regulation 13, at a rate of a week’s pay in respect of each week of leave.”

82. Regulation 16(2) provided that;

“Article 17-20 of the 1996 Order shall apply for the purpose of determining the amount of a week’s pay for the purpose of this Regulation subject to the modification set out in paragraph (3).

83. Regulation 2 defined “worker” as;

“An individual who has entered into or works under (or, where the employment has ceased, worked under) –

(a) a contract of employment; or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract who status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker’s contract shall be construed accordingly.”

84. In relevant part, Regulation 30(2) provides that an Industrial Tribunal shall not consider a complaint under this Regulation unless it is presented before the end of three months beginning with the date on which it is alleged that the payment should have been made, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for that complaint to have been presented before the end of that period of three months.

85. Regulation 30(1)(b) provided that a worker may present a complaint to an Industrial Tribunal that an employer has failed to pay in whole or any part of the amount due to him under Regulation 14(2) or 16(1).

86. Regulation 38(1) provided that, for the purpose of those Regulations, the holding, otherwise than under a contract of employment, of the office of constable shall be treated as employment, under a worker’s contract, by the relevant officer.

The Working Time Regulations (Northern Ireland) 2016

87. These Regulations came into force on 28 February 2016 and continued to implement the 2003 Directive. They replaced the 1998 Regulations.

88. Regulation 15(1) provides that “subject to paragraph (4), a worker is entitled to four weeks annual leave in each leave year.”

Regulation 15(1) provides for the entitlement to annual leave not for the entitlement to annual paid leave.

89. Regulation 20 provides that a worker taking such annual leave is entitled to be paid “at the rate of a week’s pay in respect of each week of leave.” Like the 1998 Regulations, it provided at paragraph (2) that Articles 17 to 20 of the 1996 Order shall apply for the purpose of determining the amount of a week’s pay.

90. Regulation 2 provides a definition of “worker”. It states in identical terms to the 1998 Regulations;

“Worker means an individual who has entered into or works under (or, where the employment has ceased, worked under) –

(a) contract of employment, or

(b) any other contract whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and reference to a worker’s contract shall be construed accordingly.”

91. Regulation 43(1)(b) provides that a worker may present a complaint to an Industrial Tribunal that an employer has failed to pay the whole or any part of the amount due under Regulation 17(2) or 20(1).

92. In relevant part, Regulation 43(2) provides an Industrial Tribunal shall not consider a complaint under this Regulation unless it is presented before the end of the period of three months beginning with the date on which it is alleged that the payment should have been made or, within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

93. Regulation 50(1) provided that, for the purposes of those Regulations, the holding, otherwise than under a contract of employment, of the office of the constable shall be treated as employment, under a worker’s contract by the relevant officer.

Employment Rights Order (Northern Ireland) 1996

94. Article 45 of the Order provides in relevant part that an employer shall not make an unauthorised deduction from the wages of a worker.

95. Article 55 provides in relevant part that a worker may present a complaint to an Industrial Tribunal that his employer has made an unauthorised deduction from wages.

96. Article 55(2) provides;

“Subject to paragraph (4), an Industrial Tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with –

(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made –”.

97. Article 55(3) provides in relevant part that;

“Where a complaint is brought under this Article in respect of –

(a) a series of deductions -, or

The references in paragraph (2) to the deduction - are to the last deduction - in the series -.”

98. Article 55(4) provides that;

“Where the Industrial Tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable”.

99. Article 3 of the Order defines “employees” and “workers”. It provides, relevant part;

“(1) in this Order “employee” means an individual who has entered into or works under (or where the employment has ceased, has worked under) a contract of employment.

(2) In this Order “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Order “worker” means an individual who has entered into or works under (or, where the employment has ceased has worked under) –

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing whereby the individual undertakes to do or perform personally any work or services for another party to the contract who status is not by virtue of the contract that of an individual or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker’s contract shall be construed accordingly.

(4) In this Order “employer”, in relation to an employee or worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.”

DECISION

First Legal Issue

(i) “Whether the police officer claimants are “workers” as defined by Article 3 of the 1996 Order, as a matter of domestic interpretation, and therefore whether they can, as a matter of domestic law, claim in respect of an alleged series of unlawful deductions under Articles 45 and 55 of that Order?”

100. The police officer claimants do not allege that they are “employees” for the purposes of the 1996 Order. The position in that respect is, in any event, clear. They do not work under a contract of employment as defined in Article 3(2) of the Order.

101. The claimants argue that they come within the definition of “worker” in Article 3(3)(b), as a matter of domestic interpretation; in other words, that they work under a contract (“any other contract”), under which they undertake to personally do work for another party to the contract, who is not a client or a customer.

102. They argue that the term “worker” has an autonomous and accepted meaning that applies to both European and domestic law. Lord Hoffman, in an article in the October 2018 issue of the Law Quarterly Review stated that it was a “fallacy” to suggest that words have an autonomous meaning. He stated that you can only understand what words mean “if you know the content in which (ie the background against which) they were used”. In the context of the present claims, and looking solely at this stage at domestic interpretation, the context is clear; it is set out in the plain words of the statute. It is wrong to state that an “autonomous” meaning, derived from elsewhere and from a different context, can override those plain words for the purposes of domestic statutory interpretation.

The first legal issue is whether or not the police officer claimants fall within the domestic wording of Article 3(3)(b), as it stands. For the purposes of domestic interpretation, as opposed to European interpretation, the plain wording of the statutory provision is of primary importance; rather than a purposive or teleological approach. It is therefore irrelevant whether there is a separate definition of “worker” either as a matter of European or domestic law or in relation to both. What matters in relation to the first legal issue is whether the police officer claimants come within the words of Article 3(3)(b); nothing else.

103. In Bennion on Statutory Interpretation 7^th Ed P284, it states:

“The text is the starting point, and the centre of the interpreter’s attention from them on. After all, it is the text that is being construed.”

It goes on to state:

“In William v Central Bank of Nigeria, Lord Neuberger said:

“When interpreting a statute, the court’s function is to determine the meaning of the words used in the statute. The fact that context and mischief are factors which must be taken into account does not mean that, when performing its interpretation role, the court can take a free-wheeling view of the intention of Parliament, looking at all admissible material, and treating the wording of the statute as merely one item. Context and mischief do not present a licence to Judges to ignore the plain meaning of the words that Parliament has used.”

That accepted approach to domestic interpretation, which focuses primarily on the words of the statute, does not apply to the interpretation of EU law. In relation to the latter, the interpretative approach is more purposive, or to use more archaic terminology, concerned more with context and mischief.

In Henn and Darby v DPP [1981] AC 850, Lord Diplock stated at page 950:

“The European Court, in contrast to English courts, applies teleological rather than historical methods to the interpretation of the Treaties and other Community legislation. It seeks to give effect to what it conceives to be the spirit rather than the letter of the Treaties: sometimes, indeed, to an English Judge, it may seem to be to the exclusion of the letter -”.

The difference in approach perhaps reflects the difference between a common law and a non common law jurisdiction.

In Commissioners for HM Revenue and Customs v IDT Card Services Ireland Ltd [2006] EWCA Civ 29, Arden LJ said:

“-71. On the other hand, the CILFIT case makes a point that is of particular importance in this appeal, and that is that the court should have regard to the objectives of the legislation. English statutes rarely contain statements of their objectives because they are often found not to be reliable guides to the detailed points of interpretation that tend to arise in English statutes. However European Union Directives frequently have long preambles setting out the purposes or reasons for the measures and what is intended to achieve. This point is an indication that the objectives of a measure have a greater narrative force under Community law than they would under English law.”

104. In relation to the first legal issue, the tribunal is concerned only with the domestic interpretation of the words of Article 3(3)(b). The European approach to interpretation is not relevant to the first legal issue: although it is relevant to later legal issues.

105. The police officer claimants are all either constables or sergeants in the Police Service of Northern Ireland. They therefore hold the same type of statutory office; that of constable.

106. The unique position of constables is usefully summarised in a booklet published by the Police Federation in Great Britain entitled “The Office of Constable.” That booklet quoted judgments in 1931 and 1955 [unidentified but possibly Fisher v Oldham Corporation [1930] 2KB364, and A-G for New South Wales v Perpetual Trustee Co Ltd 1955 AC 457.

“The powers of a constable, whether conferred by statute or common law are exercised by him by virtue of his office and cannot be exercised on the responsibility of any person but himself. A constable, therefore, when acting as a peace officer, is not exercising a delegated authority but an original authority.”

“(The constable) is an officer whose authority is original, not delegated, and is exercised at his own discretion by virtue of his office; he is a ministerial officer exercising statutory rights, independently of contract.”

[Tribunal’s emphasis]

The position of police officers, and the terms on which they are engaged, are regulated by primary and secondary legislation; the Police (Northern Ireland) Acts 1998, 2000 and 2003, together with the Police Service of Northern Ireland Regulations (Northern Ireland) 2005. Various determinations and circulars are made under that general statutory authority. There is no express contract between individual police constables and any other party. Furthermore there is nothing in any of this which could enable such a contract to be implied. The position is clear. This is a matter of statutory regulation; it is not a matter of contractual agreement between contracting parties for the purposes of Article 3(3)(b).

107. Police constables do not contract with anyone. In particular, they do not contract with the Chief Constable of the Police Service for Northern Ireland. While subject to his operational control and to his overall management, police constables exercise their individual statutory roles independently and on their own responsibility. For example, no-one, not even the chief constable, can direct a police officer to exercise his statutory or common law power of arrest in any particular circumstances. That has to be a decision for the individual constable, for which he carries individual responsibility.

108. In Re Chambers [2005] NIQB 27, Girvan J (as he then was) held;

“In essence a police force is a number of individual constables whose status arises from the common law, organised together in the interests of efficiency. Historically, the parish constable was a holder of an office and as the holder of such officer was responsible, by virtue of that office, firstly, for the preservation of the peace within his bailiwick and, secondly, for the execution of orders and warrants of the justices of the peace. A member of the police force of whatever rank, in carrying out his duties as a constable acts as an officer of the Crown and a public servant. His powers are exercisable by him by virtue of his office. He is not in law an employee.”

109. It must therefore follow that the nature of the role of police constables means that they do not fall within the Article 3(3)(b) definition of a “worker”. They do not have a contract with anyone and, even if they did, they do not agree to perform services for any other party to any such contract. They operate independently in the exercise of their statutory authority; although under a significant degree of operational control.

110. It is of course the case that the relationship between police constables and the Chief Constable can in certain respects appear similar to that of workers and that of an employer. There is of necessity a high degree of management control and overall supervision. That level of organisation and control is inevitable, to use Girvan J’s phrase, “in the interests of efficiency”. However, as a matter of domestic statutory interpretation, the tribunal cannot conclude that that in itself is sufficient to bring police constables within the definition of a “worker” given the plain wording of Article 3(3)(b).

111. The similarities between the role of police constables and that of employees or workers, in some respects, has been the subject of judicial comment in the field of personal injuries and negligence generally. In relation to the duty of care owed by a Chief Constable to an individual constable, the House of Lords stated in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455;

Page 481 – “An employee (I will for present purposes include in the category a “quasi employee” such as a police officer who, although he holds an office and is therefore not strictly an employee, is owed the same duty by his “employer” – here the Chief Constable of South Yorkshire police), may recover damages from his employer in respect of psychiatric injury suffered by him by reason of his employer’s breach of duty to him.”

Page 497 – “It is true that there is no contract between police officers and a Chief Constable. But it would be artificial to rest the judgment on this point; the relationship between the police officers and the Chief Constable is closely analogous to a contract of employment. And I am content to approach the problem as if there were an ordinary contract of employment between the parties.”

112. However, importing concepts such a duty of care, to the extent which would usually be found in a master servant relationship, into the relationship between a police constable and a Chief Constable does not make that relationship a relationship based on contract. In Frost, the House of Lords clearly stated that no contract existed between police constables and the Chief Constable. A “quasi employee” for the purposes of the law of negligence is not a “worker” for the purposes of Article 3(3)(b). Something which is analogous to a contractual relationship is not a contractual relationship.

113. The office of constable has certain similarities with that of a judicial office. Both statutory offices are founded upon an oath taken on appointment. Both officeholders exercise their functions independently but under a supervisory or management structure – “in the interests of efficiency”. However none of that and none of the related case law, can alter the plain wording of Article 3(3)(b), as a matter of solely domestic statutory interpretation.

114. The Court of Appeal determined a point similar to the first legal issue in Gilham v Ministry of Justice [2017] EWCA Civ 2220. In that case a District Judge brought a whistleblowing claim under Section 47B of the GB equivalent to the 1996 Order. That type of claim could only be brought by a “worker”; that was defined in identical terms to Article 3(3)(b) of the 1996 Order. As in the present claims, the claimant argued that she was a worker under that definition in sub-paragraph (b).

115. Like police constables, the claimant in Gilham was a statutory officeholder, exercising her statutory office independently but under supervision or control.

116. Unlike O’Brien or Perceval-Price, the primary argument in this case was a matter of the domestic interpretation of the words of Section 230(3)(b) which were identical to Article 3(3)(b).

“3. - but the whistleblower legislation is purely domestic and does not derive from any EU Directive.”

117. The claimant in Gilham argued:

“7. -(i) that she works under a contract;

(ii) that the other party to the contract is the Lord Chancellor;

(iii) that under the contract she undertakes to do or perform work or services personally;

(iv) that the work or services in question are for the Lord Chancellor and;

(v) that under that contract the Lord Chancellor’s status is not that of a client or customer.

118. To come within the wording of Article 3(3)(b), the police officer claimants must make exactly the same argument, with the substitution of “Chief Constable” for “Lord Chancellor”.

119. The Court in Gilham reviewed the case law on what it referred to as “the clergy cases” and “the judicial cases”. In Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73, Lord Nicholls stated at para 20:

“Whether there is a contract in a particular case, and if so what is its nature and what are its terms, depends on the application of familiar general principles -.”

Lord Hoffman stated at para 54 –

“The distinction in law between an employee, who enters into a contract with an employer, and an office-holder, who has no employer but holds his position subject to rules dealing with such matters as his duties, the term of his office, the circumstances in which he may be removed and his entitlement to remuneration, is well established and understood. One of the oldest offices known to the law is that of constable. It is notorious that a constable has no employer -.”

He continued in relation to Percy:

“Page 48 – There was plainly an intention to create legal relations. But those legal relations were not a contract of employment. They were an appointment to a well-recognised office, imposing legal duties and conferring legal rights. The nature of an office inevitably means that the procedures for appointment will closely resemble those attending the engagement of an employee – But that does not mean that their appointment to these offices created contractual relations”.

120. In Preston v President of the Methodist Conference [2013] UKSC 29, Lord Simpson stated:

“12. The question is whether the incidents of the relationship described in those documents, properly analysed, are characteristic of a contract and, if so, whether it is a contract of employment”.

121. In Sharpe v Worcester Diocesan Board of Finance Ltd [2015] EWCA Civ 399, the issue was whether a Church of England minister was either an “employee” or a “worker”. Arden LJ held that the relationship was not contractual.

“The office of rector is governed by a regime which is part of ecclesiastical law. It is not the result of a contractual arrangement.”

Arden LJ also referred to:

“Well established law that a contract should not be implied unless the party seeking to establish such a contract shows that it is necessary to be implied.”

122. The Court in Gilham then considered the judicial cases, including Perceval-Price and O’Brien. Those two decisions involved European law and involved no consideration of “the very large question of whether all or any servants of the Crown have contracts of employment.”

The Court determined that those decisions had no direct relevance to the question of domestic interpretation which now falls to the present tribunal in relation to the first legal issue.

123. The Court in Gilham determined that a District Judge was not a “worker” as a domestic interpretation of words identical to Article 3(3)(b). There was no contract of any sort; implied or express.

“66 - the essential point appears to us to be that the core rights and obligations of a judicial officeholder derive from statute and not from any relationship with the Lord Chancellor.”

124. The same can be said of the police officer claimants. There is no contractual relationship between them and the Chief Constable.

125. The claimants place particular emphasis on the wording of Article 243 in the 1996 Order. That Article is the equivalent of Section 200 in the 1996 Employment Rights Act in Great Britain.

Article 243 provides that certain provisions in the 1996 Order do not apply to those with a contract of employment in the Police Service or to those engaged in the Police Service. Police Service is defined as service as a police officer.

126. Section 43A of the Interpretation (Northern Ireland) Act 1954 provides, in material part, that in any statute;

“The police, police officer, Police Service of Northern Ireland and police support staff have the same meaning as in the Police (Northern Ireland) Act 2000”.

127. Section 77(1) of the Police (Northern Ireland) Act 2000 defines “police officer” as a person who is;

“(a) a member of the Police Service of Northern Ireland; or

(b) a member of the Police Service of Northern Ireland Reserve.”

128. Therefore, on its face, Article 243 excludes police constables (police officer claimants) from certain parts of the 1996 Order, but not from Articles 45 and 55 of that Order. The claimants therefore argue that such a provision excluding the police officer claimants from the benefit of particular parts of the 1996 Order could only have been necessary if those police officer claimants had already been covered by the 1996 Order as part of the ordinary domestic interpretation of Article 3(3)(b). They rely on the interpretation maxim;

“Exclusio unius est inclusio alterius.”

129. That argument may have made more sense if the provisions from which police officer claimants are excluded by virtue of Article 243 related simply to “workers”. However the exclusions within Article 243 cover rights under the 1996 Order which are conferred upon, in certain instances “employees” and in other instances “workers”. They do not relate solely to rights given to “workers”. If the argument put forward on behalf of the claimants were correct, it would be difficult to understand why the exclusions contained within Article 243 include, for example, Articles 40-42 which relate solely to “employees”. The claimants do not argue that the police officer claimants are “employees” or that they operate in any way under a contract of employment or contract of service for the purposes of Article 3.

130. If it is the case that Article 243 excludes police officer claimants from certain rights conferred by the Order which are applicable to either employees or to workers, and if it is correct that this is so because police officers were already covered by both the definitions of “employee” and the definition of “worker”, that itself does not sit easily with other parts of the 1996 Order. For example Article 72A is a deeming provision which allows a person holding the office of constable to be treated as being employed by the Chief Constable under a contract of employment. It therefore is a deeming provision which allows a police constable to be treated as an employee.

On the claimants’ argument, Article 243 would suggest that, apart from the provisions in Article 243, police officers are “employees” and at the same time Article 72A would suggest that apart from the provisions of that Article, they are not employees. Both positions cannot be simultaneously correct.

131. A further example is that of Article 67KA which extends the protected interest disclosure provisions in Part VA of the Order to police officers. It states;

“a person who holds, otherwise than under a contract of employment, the office of constable shall be treated as an employee - -”.

It also deems the employer in such circumstances to be the Chief Constable.

Again it is difficult to see how this deeming provision is consistent with an argument that, because of the wording of Article 243, police officers are, necessarily, both “employees” and “workers”.

If police officer claimants are already “employees”, Article 67KA(2) is unnecessary. If they are not employees, then those parts of Article 243 which refer to “employees” and their rights, such as the exclusion from Articles 40 to 42, are unnecessary. It cannot be both.

132. Article 243 is difficult to construe. It would appear to exclude constables who are engaged on contract; possibly the Harbour Police. It may be that its potential application to police constables in the Police Service of Northern Ireland, as a result of the Interpretation Act, was not appreciated when it was drafted.

133. The least illogical way of construing Article 243 is to regard it, like Section 200 of the 1996 Act, as a measure to exclude constables, who arguably had contracts of employment, from certain rights. That was the position taken by the Court of Appeal (GB) in Redbridge London Borough Council v Dhinsa [2014] ICR 831 where it stated;

“63. Section 200 of the Employment Rights Act 1996 only deals with constables who have contracts of employment.”

134. The claimants argue that a tribunal must interpret legislation such as Article 243 of the 1996 Order as it stands and that it is bound therefore to draw the inference that they urge upon the tribunal; namely that the exclusion of certain rights as a result of that Article means, of necessity, the inclusion of other rights; and in particular those contained within Articles 45 and 55. However, this is one of those situations where the terms of a statutory provision make no sense at all. Article 3(3)(b) makes it plain that, as a matter of domestic interpretation, the police claimants are not “workers” the reasons for that conclusion are set out above. Article 243 cannot, as a matter of domestic interpretation, change that fact; particularly given the contradictions apparent on the face of the Order as indicated above in relation to Article 67KA and Article 72A.

135. Bennion (7^th Ed) obviously recognises, for domestic purposes, the primacy of the wording of the legislation. However it also recognises that, on occasion, legislative provisions contain conflicts which may or may not indicate a mistake. It states at page 424:

“Where the court is required to construe a garbled text, or to construe an Act that contains a textual conflict, the Court must make sense of the overall text. – It may well have to adopt a strained construction as – by definition – there will be no grammatical construction to fall back on.

In R V Moore, a case involving conflicting texts, Sedley J said:

“There is every reason to believe that there has been an error of draftsmanship in the 1991 Act in the course of distributing the amending provisions between the two statutes …

In such a situation (see Bennion on Statutory Interpretation 2^nd Ed 1992) the court is affirmatively required to give a rectifying construction of the kind described by Lord Hershall LC in Institute of Patent Agents v Lockwood [1894] AC 347 at 360:

“You have to try and reconcile (the provisions) as best you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision and which must give way to the other”.

136. The tribunal therefore unanimously concludes that Article 243, in respect of the police officer claimants is superfluous in that it seeks to exclude those claimants from parts of the 1996 Order from which they are already excluded. No inference can therefore properly be drawn in relation to the domestic interpretation of the 1996 Order as urged by the claimants.

Summary in Relation to the First Legal Issue

137. The police officer claimants are not “workers” for the purposes of Articles 45 and 55 of the 1996 Order, on the domestic interpretation of the plain wording in Article 3(3)(b). They do not operate under a contract of employment. They do not operate under any form of contract with anyone. They do not agree to provide services personally for anyone. They operate under statute in relation to their core functions as independent officeholders albeit under the operational and supervisory control of the Chief Constable. Their status as “quasi-employees” (see Frost above) cannot bring them within the wording of Article 3(3)(b).

138. If European statutory interpretation can be relied upon as argued by the claimants, that is a matter for further legal issues raised in relation to these claims.

Second Legal Issue

(ii) “Given the decision of the tribunal that police officer claimants are not “workers” as defined, in domestic terms, by Article 3(3)(b) of the 1996 Order, does the European principle of equivalence apply, given the differences between the remedy available to the police officer claimants under the Working Time Regulations and the remedy available to civilian employee claimants under Articles 45 and 55 of the 1996 Order, or on the basis of any other comparison?”

139. If the police officer claimants may not claim under the 1996 Order and therefore if those claimants are restricted to the domestic interpretation of the Working Time Regulations, they can only claim back for arrears of allegedly underpaid holiday pay for a period of three months from the date of each claim. That can in many cases reduce the value of their claim significantly. An extreme example is that of Constable Agnew who has had no breaks in a series of allegedly unfair deductions from holiday pay which have lasted in each instance for more than three months. Other claimants may well be in the same position. Yet other claimants will have had a similarly unbroken series of allegedly unlawful deductions going back for lesser periods but for periods significantly longer than a period of three months calculated back from the date of each claim.

140. As a protective measure, police officer claimants have repeatedly lodged further claims to ensure that each episode of holiday pay is the subject of a claim which covers the relevant period.

141. The position of the police officer claimants can be contrasted with the position of the civilian employee claimants. The latter group of claimants are entitled to claim, as a matter of domestic statutory interpretation, under Articles 45 and 55 of the 1996 Order, as well as under the Working Time Regulations. They are accepted as being both “employees” and “workers” for the purposes of Article 3 of the 1996 Order. That means that they can claim in respect of a “series” of allegedly unlawful deductions from holiday pay. The definition of a “series” and the clarification of circumstances in which such a series can be broken, is matter for later legal issues.

142. The remedy available to civilian employee claimants is therefore a significantly more generous remedy than that available to the police officer claimants. If Constable Agnew had been a civilian employee he could have claimed under Articles 45 and 55 right back to 1998 rather than back for only three months from the date of his first claim.

143. The civilian employees also did not have to renew their claim on every occasion they took holiday pay or every three months. They could wait for longer periods and only needed to repeat their claims if there was a danger of a “series” being broken by an intervening event or by a lengthy gap in the series of allegedly unlawful deductions.

144. The civilian employee claimants work with and support the police officer claimants in their normal duties. Civilian employees can, on occasion, be retired police officers. However the remedy available to police officer claimants under domestic legislation is significantly less than that available to civilian employee claimants. The procedure for seeking and maintaining the right to remedy is also more difficult for police officer claimants.

145. It is therefore clear that there is a clear difference in terms of potential remedy and in terms of procedure available to two groups of individuals who work closely together.

146. However that comparison is not the comparison put forward, at least latterly, on behalf of the claimants for the purpose of the principle of equivalence. The claimants invite the tribunal to draw a comparison between on the one hand, the EU claim open to police officer claimants which is derived from the Working Time Directive and, on the other hand, claims brought by anyone under domestic law for arrears of holiday pay under the 1996 Order to this tribunal or as a civil action to the County Court.

147. Therefore the obvious difference in remedy and procedure, available under domestic law to the two groups of claimants in the present claims, is a distraction and not directly relevant to the second legal issue. The comparison sought is between the restricted remedy and procedure available to those who are, domestically, “workers” only for the purposes of the Working Time Regulations and those who are domestically also workers for the purposes of the 1996 Order, or those who may claim for breach of contract in the County Court in respect of a domestic right.

148. In Levez v TH Jennings (Harlow Pools) [1999] ICR 521, the CJEU considered the situation where equal pay claims for arrears of pay were limited to three years, and where more favourable rules applied to similar domestic actions for the recovery of underpaid contractual entitlements. The CJEU was concerned in that case with protection against discrimination rather than, as in the present cases, with a health and safety issue. However the principle appears to remain the same; the need to avoid the terms of a Directive being sidestepped by less favourable domestic rules, including in particular rules on backdating the potential remedy provided to a claimant.

149. The Advocate General dealt with the principle of equivalence in his opinion. He stated;

“26. The aim of this principle is that domestic law remedies should safeguard Community law “without discrimination;” that is to say, the exercise of a Community right before the national courts must not be subject to conditions which are more strict (for example, in terms of limitation periods, conditions for recovering undue payment, rules of evidence), than those governing the exercise of similar rights derived wholly from domestic law.

[Tribunal’s emphasis]

27. The crucial question raised by the present case is whether or not the national rules of procedure laid down in Section 2(5) of the Equal Pay Act 1970 – applying to claims relying on the right conferred by Community law to equal pay for equal work, laid down by Article 119 of the Treaty and by Directive 75/117 – are less favourable than other procedural rules governing similar rights derived from domestic law.

28. Those “similar rights derived wholly from domestic law” remain to be identified.

29. That is why the Court is asked, in particular to clarify the meaning of the expression “similar domestic actions” – in relation to actions for recovery of arrears or for remuneration, in reliance on the principle of non-discrimination, as provided for and safeguarded by Article 119 of the EC Treaty and Directive 75/117 – for the purposes of applying the principle of equivalence.

30. Although in some cases there is no difficulty in identifying similar forms of domestic action, in other cases it is clearly necessary to determine the ground of comparison which in practice involves a policy decision.

31. The greater the desire to facilitate exercise of a Community right, the wider the range of domestic actions accepted as valid comparators.

32. Mr Advocate General Mancini faced with the same problem, speculated in his opinion in the Amministrazione delle Finanze dello Stato v S.p.A. San Giorgio (case 199/82) [1983] ECR 3595, 3633 para 11:

“In what circumstances can it be said that similarity exists and that therefore different treatment is prohibited?”

In the circumstances of that case he decided on a broad interpretation of the principle of equivalence or non-discrimination;

“I would point out in the first place that the prohibition of discrimination is a general principle of Community law and therefore any weakening of that principle by the imposition of limits must be approached with great caution”.

150. As pointed out above, the Levez case concerned the principle of non-discrimination whereas the present cases concern a health issue. However there appears to be no reason why measures to promote the health of workers which are contained within a Directive should be treated any differently from measures against discrimination which are also contained within a Directive. Therefore where the argument is put forward by Advocate General Mancini that any weakening of any such rights by the imposition of limits (which must include limits on remedy) should be treated with great caution, that appears to apply to the present claims; provided that those limits are less favourable than those which apply to similar actions derived wholly from domestic law.

151. In The Sash Window Workshop Ltd v King [2018] IRLR 142, the Advocate General emphasised that need for caution. He stated that Article 7 of the Directive is “a provision which cannot be interpreted restrictively”. He went on to say:

“Every worker’s right to paid annual leave is a particularly important principle of Union social law, and one which is enshrined in Article 31(2) of the Charter.”

152. Article 6(1) of the Treaty on European Union provides for that Charter, the Charter of Fundamental Rights of the European Union, to have the same status as EU Treaties. It is directly effective.

The Charter also provides at Article 47:

“Everyone whose rights and freedoms guaranteed by law of the Union are violated has the right to an effective remedy before a Tribunal in compliance with the conditions laid down in this Article.”

[Tribunal’s emphasis]

153. A failure to provide the right to paid (ie properly and fully paid) annual leave of 20 days, as provided by the Working Time Directive and as underwritten by the Charter, is an extremely serious matter going to the heart of one of the “fundamental rights” of the European Union.

That has to be properly taken into account when considering the operation of the principle of equivalence.

154. In general the CJEU leaves it to the national courts to determine whether or not actions are sufficiently similar to trigger the principle of equivalence. However the CJEU has issued some guidance in this area.

155. In the case of Palmisani v Instituto Nazionale della Previdenza Social (1MPS) [1997] 3 CMLR 1356, the CJEU considered the principle of equivalence. That case concerned a worker seeking reparation arising out of the late transposition of a Directive relating to rights under insolvency. In the Francovich decision, the CJEU had determined that individuals affected in that way could lodge a claim against the Member State which had been at fault. Following that decision, the Italian Government had introduced legislation which stated that any such action for reparation “must be brought within a period of one year to run from the date of entry into force of this decree”.

Ms Palmisani lodged a claim after the expiry of one year after the relevant decree. She argued that there had been justification for the delay because of the uncertainty as to the identity of the public body liable to pay reparation. She pointed out the obvious difference between the system established by the relevant decree and the general system available in Italian law for reparation in the cases of non-contractual liability. Obviously this case concerned time limits for bringing an action rather than limitations on the right to claim for arrears. However in respect of the principle of equivalence, the issue is the same.

156. In that case, the CJEU was considering the narrow issue of reparation due in relation to the late transposition of a Directive. It concluded that in those narrow circumstances a proper comparison could not be made with other actions such as actions to obtain social security benefit or ordinary actions for damages. It concluded that a one year period from the implementation of the Directive was something which a Member State had been entitled to impose. It did not contravene the principle of equivalence. On the facts therefore, the Palmisani case is of limited relevance to the present cases. However it stated in general terms;

“- Further, the conditions, in particular time limits, for reparation of loss or damage laid down by national law must not be less favourable than those relating to similar domestic actions (principle of equivalence) and must not be framed as to make it virtually impossible or excessively difficult to obtain reparation (principle of effectiveness).” – paragraph 27

The claimants in the present cases rely on the principle of equivalence and not on the principle of effectiveness.

157. In Preston and Others v Wolverhampton Healthcare NHS Trust [2000] 2 CMLR 837, the CJEU was considering issues surrounding the exclusion of individuals from pension schemes of certain part-time workers. In relation to the principle of equivalence it stated;

“48. By the first part of its second question, the House of Lords asks whether, in order to ensure compliance with the principle of equivalence, it may hold that an action alleging infringement of provisions of a law such as the EPA constitutes a domestic action similar to one alleging infringement of Article 119 of the Treaty.

49. In order to verify whether the principle of equivalence has been complied with in the present case, it is for the national court, which alone has direct knowledge of the procedural rules governing actions in the field of domestic law, to verify whether the procedural rules intended to ensure that the rights derived by individual from Community law are safeguarded under domestic law comply with that principle and to consider both the purpose and the essential characteristics of allegedly similar domestic actions (see case C‑326/96 Levez [1998] ECR 1-7835, paragraphs 39 and 43).

50. However with a view to the appraisal to be carried out with a national court, the court may provide guidance for the interpretation of Community law.

51. It must be borne in mind that the court held, in paragraph 46 of Levez, a judgment delivered after the House of Lords sought a ruling in this case, that the EPA was the domestic legislation which gave effect to the Community principle of non-discrimination on grounds of sex in relation to pay, pursuant to Article 119 of the Treaty and Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women (OJ 1975 L 45, page 19). In paragraph 47 of the same judgment, the Court stated that the fact the same procedural rules applied to two comparable claims, one relying on a right conferred by Community law, the other on a right acquired under domestic law, was not enough to ensure compliance with the principle of equivalence, since one and the same form of action was involved.

52. Since the accession of the United Kingdom to the Communities, the EPA constituted the legislation by means of which the United Kingdom discharged its obligations under Article 119 of the Treaty and, subsequently, under Directive 75/117, the Court concluded that the EPA could not provide an appropriate ground of comparison against which to measure compliance with the principle of equivalence (Levez, paragraph 48).

53. The answer to the first part of the second question must therefore be that an action alleging infringement of a statute such as the EPA does not constitute a domestic action similar to an action alleging infringement of Article 119 of the Treaty.

54. By the second part of its second question the House of Lords seeks to ascertain the Community law criteria for identifying a similar action in domestic law.

55. The principle of equivalence requires that the rule at issue be applied without distinction, where the infringement alleged is of Community law or national law, where the purpose and cause of the action are familiar (Levez, paragraph 41).

56. In order to determine whether the principle of equivalence has been complied with at the present case, the national court – which alone has direct knowledge of the procedural rules governing actions in this field of employment law – must consider both the purpose and the essential characteristics of allegedly similar domestic actions (Levez, paragraph 43).

57. In view of the foregoing, the answer to the second part of the second question must be that, in order to determine whether a right of action available under domestic law is a domestic action similar to proceedings to give effects to rights conferred by Article 119 of the Treaty, the national Court must consider whether the actions concerned are similar as regards their purpose, cause of action and essential characteristics.”

The Court in Preston went on to consider guidance on how a national Court should determine whether or not the procedural rules were “less favourable” than those available in similar actions. It stated;

“59. For the purposes of the appraisal to be conducted by the national court, regard must be had to the relevant guidance as to the interpretation of Community law given in Levez.

60. Thus in paragraph 51, the Court stated that the principle of equivalence would be infringed if a person relying on a right conferred by Community law were forced to incur additional costs and delay by comparison with a claimant whose action was based solely on domestic law.

61. More generally, it observed that whenever it fell to be determined whether a procedural provision of national law was less favourable than those governing similar domestic actions, the national court must take into account the role played by that provision in the procedure as a whole as well as the operation and any special features of that procedure before the different national courts (Levez, paragraph 44).

62. It follows that the various aspects of the procedural rules cannot be examined in isolation but must be placed in their general context. Moreover such an examination may not be carried out subjectively by reference to circumstances of fact but must involve an objective comparison, in the abstract, of the procedural rules at issue.

63. In view of the foregoing, the answer to the third part of the second question must be that, in order to decide whether procedural rules are equivalent, the national court must verify objectively in the abstract whether the rules at issue are similar taking into account the role played by the rules in the procedure as a whole, as well as the operation of that procedure and any special feature of those rules.”

158. In Preston, a comparison was sought between two European based actions: an action under the EPA and an action under Article 119. The former was simply the transposition of the latter; they were not two separate actions. That is not a difficulty in the present claims where the comparison is sought between a European based action and a domestic action.

159. In the case of Danske Slagterier v Bundesrepublik Deutschland, the CJEU again considered the principle of equivalence. In that case it was argued that the principle of equivalence had been engaged in circumstances where the limitation period for actions had not been automatically suspended during periods when the European Commission had brought infringement proceedings under Article 226 of the Treaty. The claimant sought to rely on a particular paragraph in the German Civil Code, which provided for the suspension of a limitation period in parallel circumstances.

160. The CJEU stressed again that it is for the national court to verify objectively, and in the abstract, whether the rules at issue are similar taking into account the role played by them in the procedure as a whole as well as the operation of that procedure and any special features of the rules. It concluded that infringement proceedings under Article 226 which were brought by the Commission, were proceedings brought of the Commission’s own motion and in the general interest. It concluded that such proceedings were not a truly similar action to actions under paragraph 839 of the German Civil Code which were actions designed to protect the individual parties own rights rather than a general enforcement/infringement action. That does not apply to the comparison sought in the present claims which is a comparison between two civil actions, each with a similar purpose.

161. The problem of identifying a sufficiently comparable domestic law action also arose Tarsia v Statul Roman C-69/14. In that case the claimant sought to compare proceedings in relation to the recovery of a car purchase tax from the state with proceedings to recover damages in civil proceedings between individuals. The CJEU stated:

“32. It is clear from the case law cited in paragraph 27 of the present judgment that the principle of equivalence prohibits a Member State from laying down less favourable procedural rules for claims for repayment of a tax based on EU law than those applicable to similar proceedings based on a breach of national law.”

However the CJEU went on to hold that it was not possible to properly compare, for the purposes of the principle of equivalence, the two types of action. One was administrative ie “Citizen v State” and one was civil ie “Citizen v Citizen”.

That is not a difficulty with the comparison argued for by the present claimants. The comparison is sought between two civil actions, both with the same purpose.

162. The principle of equivalence was further considered by the Supreme Court in Totel v Revenue and Customs Commissioners [2018] UKSC 44. That case concerned a requirement that a party seeking to challenge a VAT assessment should, as a condition of its appeal being entertained, pay or deposit the amount of disputed tax. The plaintiff alleged that such a requirement offended against the EU law principle of equivalence.

163. In general the Supreme Court stated;

“The principle of equivalence and its qualifying proviso are creatures of the jurisprudence of the CJEU (and its predecessors), and take effect within the general context that it is for each Member State to establish its own national procedures for the vindication of rights conferred by EU law;”

“Further, it has been repeatedly stated by the CJEU that it is for the courts of each Member State to determine whether its national procedures for claims based in the EU law fall foul of the principle of equivalence, both by identifying what if any procedures for domestic law claims are true comparators for that purpose, and in order to decide whether the procedure for the EU law claim is less favourable than that available in relation to a truly comparable domestic claim.”

164. The Supreme Court clarified the difference between the principle of equivalence and the principle of effectiveness. In relation to the principle of effectiveness it stated;

“That principle imposes a purely qualitative test, which invalidates a national procedure if it renders the enforcement of a right configured by EU law either virtually impossible or excessively difficult.”

In relation to the principle of equivalence it stated;

“By contrast, the principle of equivalence is essentially comparative. The identification of one or more similar procedures for the enforcement of claims arising in domestic law is an essential pre-requisite for its operation. If there is no true comparator, then the principle of equivalence can have no operation at all;”.

165. The Supreme Court stated;

“8. Plainly, the question whether any, and if so which, procedures for the pursuit of domestic law claims are to be regarded as true comparators with a procedure relating to an EU law claim will depend critically upon the level of generality at which the process of comparison is conducted. Is it sufficient that both claims are tax appeals, or (as Totel submits) appeals against the assessment of tax, or that they must both be made to the same tribunal? Or is it necessary to conduct some more granular analysis of the different claims, and the economic structures on which they arise? Or is there some simple yardstick which would prevent claims from being truly comparable, such as, in the present case the difference between the claims arising out of the assessment of liability to direct and indirect taxes, (as HMRC submits)? Decisions of the CJEU provide considerable assistance in identifying the correct approach to this task, although the guidance to be gained from them is not always that which springs from an over simplistic analysis of particular phraseology.

9. First, the question whether any proposed domestic claim is a true comparator with EU law claim is context specific. As Lord Neuberger of Abbotsbury put it in Revenue and Customs Commissioners v Stringer [2009] ICR 985, para 88;

“It seems to me that the question of similarity, and the context of the principle of equivalence, has to be considered by reference to the context in which the principle is being invoked.”

In the decision the Court went on to state;

“11. Of particular importance within the relevant context is the specific procedural provision which is alleged to constitute less favourable treatment of the EU law claim. This is really a matter of common sense. Differences in the procedural rules applicable to different types of civil claim are legion, and are frequently attributable to, or at least connected with, differences in the underlying claim. A common example is to be found in different limitation periods. Thus, in England and Wales, the primary limitation period for personal injury claims is three years, whereas the primary limitation period for most other claims is six years. There is a 20 year prescription period for property claims in Scotland. To treat personal injury and, for example property claims as true comparators for the purpose of deciding whether the shorter limitation period for personal injury claims constitutes less favourable treatment would make no sense. This is because it is no part of the purpose of the principle of equivalence to prevent Member States from applying different procedural requirements to different types of claim, where the differences in those procedural requirements are attributable to, or connected with differences in the underlying claims.”

166. The Supreme Court referred to other instances in CJEU jurisprudence where it had been determined that claims relating to direct taxation were not comparable for the purposes of the principle of equivalence with claims relating to value added tax. It stated;

“18. Taken together, these authorities certainly justify the exercise of very considerable caution by a national court when faced with the assertion that a VAT claim should be treated as truly comparable, for the purposes of the principle of equivalence, with a claim relating to some domestic tax and in particular with any direct tax. But I do not consider it necessary or appropriate to go as far as to conclude that, for all purposes connected with the principle of equivalence, VAT claims must be treated as sui generis, with no possibility of it being a true comparator in a claim arising out of some other tax.”

167. The Supreme Court however concluded that;

“22. Nevertheless, applying the context specific analysis called for by the European jurisprudence which I have described, the Court of Appeal was in my judgment correct to conclude that none of the domestic taxes (namely income tax, CGT and SDLT) proposed by Totel constituted true comparators with VAT for the purpose of deciding whether the imposition in the VAT context of a pay first requirement constituted less favourable treatment contrary to the principle of equivalence. This is because a trader seeking to appeal a VAT assessment is typically in a significantly different position from a tax payer seeking to appeal an assessment to any of those other taxes and in a manner which is properly to be considered as sufficiently connected with the imposition of a pay first requirement.”

168. While it is clear that there are significant differences between a VAT appeal and an appeal in relation to capital gains tax etc, it cannot be as easily argued that there are any significant differences between a claim under the Working Time Regulations, necessarily to assert an European right, and a claim under Articles 45 and 55 of the 1996 Order to assert a domestic right. Both in the relevant context relate to precisely the same issue ie the failure to calculate holiday pay correctly and the consequent accumulation of arrears of pay. In reality, claimants often lodge claims under both the Regulations and the Order. They are heard together and tribunals rarely address those claims separately or distinguish between them. The two types of claim require the same type of evidence and are based on the same issue; whether there is a contractual entitlement to a particular level of payment which has not been fulfilled. It matters not that the contractual entitlement arises from domestic or from European law.

169. Actions to recover arrears of pay, which are based on rights wholly derived from domestic law are significantly more favourable that the only action available under domestic law to police officer claimants to recover arrears of holiday pay, which are based on rights wholly derived from the Working Time Directive.

In relation to the former, claims under Articles 45 and 55 of the 1998 Order can go back as long as a “series” of unlawful deductions has lasted. Claims in the County Court for arrears to pay can go back for six years.

In relation to the latter, claims can only go back for three months.

170. The tribunal unanimously decides that the proper comparison is between, on the one hand, the claims in relation to Working Time Directive rights available to police officer claimants under the Working Time Regulations and, on the other hand, claims available to anyone seeking to recover arrears of holiday pay in an entirely domestic action under Articles 45 and 55 of the 1996 Order. It seems unnecessary to refer to County Court actions.

The EAT, when the Levez case returned to it, [1999] IRLR 764 held that claims under the GB equivalent of Articles 45 and 55 of the 1996 Order were essentially the same as claims under the Equal Pay Act, and therefore a proper basis for a comparison to attract the principle of equivalence. It held

“18. - the comparison must be a “true” one. The jurisdictional basis for the claim must be essentially the same.”

“20. - the nature of the relief, the juridical basis of the claim, is the same whether the term sought to be enforced is express, implied or imposed. Claims arising from non-payment of wages, whether the obligation to pay is express, implied or imposed, are based upon identical causes of action.”

171. In the Sash Window Workshop Limited v King [2018] IRLR 142, the CJEU considered the case of a sales person who had been engaged on a commission only basis. He had been regarded as self-employed, wrongly, and had been refused paid annual leave throughout the period of his employment from 1999 until 2012. On the conclusion of his employment, he sought to recover payment for annual leave which was refused on the basis that he had been self-employed. He lodged proceedings in the Employment Tribunal seeking payment of unpaid annual leave throughout the entire period of his employment of approximately 13 years. The employer claimed that, by failing to take an action under Regulation 30(1)(a), the claimant had lost all entitlement in respect of periods of annual leave since any claim for payment not taken in respect of the holiday years in question had been time barred.

172. The CJEU ruled that in a situation where the employer had refused paid leave to the worker throughout the period of his employment, the employer’s interpretation would prevent the worker being able to exercise his right to paid leave. It concluded therefore that Article 7 of the Directive and the right to an effective remedy set out in Article 47 of the Charter, precluded the worker from having to take his leave first before establishing whether he had a right to be paid in respect of that leave.

173. The CJEU concluded that the very existence of the right to paid annual leave cannot be subject to any pre-conditions whatsoever; that right being conferred directly on the worker by the Directive. Thus, it had been irrelevant that Mr King had not made requests for paid annual leave throughout his employment. If it were to be accepted that the worker’s entitlement to paid annual leave could be extinguished, that would amount to validating conduct by which an employer was unjustly enriched to the detriment of the purpose of the Directive. Article 7 precludes national provisions that prevent a worker from carrying over and where appropriate accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.

174. This case was rightly described by the respondents as an extreme case where paid leave had been refused, or at least not provided, throughout the period of employment on the incorrect basis that the claimant had been a self-employed contractor.

175. However the judgment of the CJEU is not strictly speaking limited to those extreme circumstances. In assessing the second to the fifth questions put before the CJEU for determination, the Court did not limit its consideration to the particular circumstances of an employer who had refused to pay any annual leave on the incorrect basis that the worker had been a self-employed contractor. It put it in a different manner;

“48. By its second to fifth questions, which it is appropriate to examine together, the referring Court asks, in essence, whether Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and where appropriate accumulating until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.”

176. Those questions, as formulated by the CJEU in that paragraph, must apply equally to a situation where an employer failed to fully remunerate a worker throughout the period of his employment in respect of the right guaranteed to that worker under the Directive. The right guaranteed by the Directive is to fully paid leave; not to partly paid leave.

177. The CJEU stated;

“50. - The Court must take into consideration, in that regard, the employment relationship as it existed and persisted, for whatever reason, until Mr King retired, without him having been able to exercise his right to paid annual leave”.

That situation, in the Sash Window’s case is analogous to the situation in the present claims with the addition of the word “fully” before the word “exercise”. The situation remains essentially the same. The police officer claimants and indeed the civilian employee claimants were prevented from exercising their right to annual paid leave fully in accordance with the Directive “for reasons beyond their control”.

178. In the Sash Windows case, the CJEU was looking at a situation where the worker had terminated his employment and was therefore looking for payment in lieu. That situation is obviously a situation which does not apply in the current claims, or at least in some of them. However in that context, the CJEU stated in relation to the amount of payment in lieu;

“The amount of that payment must be calculated so that the worker is put in a position comparable to that he would have been in had he exercised that right during his employment relationship.”

Applying that principle to the present claims, this underlines the importance of ensuring that the full right to annual paid leave is honoured in this case and that the employer should not be allowed to escape its responsibilities. As the CJEU stated;

“It follows from the above that, unlike in a situation of accumulation of entitlement to paid annual leave by a worker who was unfit for work due to sickness, an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences”.

179. The respondents argue that police officers have an almost unique status and “have long been treated differently”. That is undoubtedly the case. However the issue here is different. Given the purpose of the Working Time Directive, which is to protect the health of employees and workers, it is not appropriate for police officer claimants to be given a significantly less generous remedy and effectively a more difficult procedure, without specific European provision to that effect.

180. As a side issue, respondents allege that police officer claimants are only “workers” by virtue of the deeming provisions contained within Regulations 38 and 50 of the 1998 and 2016 Regulations. They argue that, without those deeming provisions, police officer claimants would be excluded even from the provisions of the Working Time Regulations.

181. This argument must be incorrect. The purpose of the Working Time Regulations is to implement the requirements of the Working Time Directive. They relate entirely and specifically to a European right; ie the right to a minimum period of 20 days fully paid leave each year.

182. In parallel circumstances, the Court of Appeal determined in Perceval-Price v Department of Economic Development [2000] IRLR 380, that three tribunal chairmen were “workers” within the meaning of European Community Law.

It held that;

“The tribunal in the present case took the view that the term “worker” in the context of Community law must be interpreted broadly and in a purposive fashion, an appraisal with which we agree. The object of Community legislation, protection against inequality of treatment or discrimination seems to us to require the inclusion within the definition of all persons who are engaged in a relationship which is broadly that of employment rather than being self-employed or independent contractors. This being so, we are of opinion that the respondents come within the terms of Article 119 and the Directive as workers in employment.”

183. The House of Lords has already described police constables as “quasi employees” (see Frost above). They share clear similarities with judicial officeholders in that they operate under an oath, they operate in relation to certain statutory functions as independent officeholders within the terms of that oath or office, and they operate under a management or supervisory structure. They are in a position which is “broadly that of employment”. They are not “self-employed or independent contractors”.

184. Sir Robert Carswell LCJ stated;

“All Judges, at whatever level, share certain common characteristics. They all must enjoy independence of decision without direction from any source, which the respondents rightly defended as an essential part of their work. They all need some organisation of their sittings, whether it be prescribed by the President of the Industrial Tribunals or the Court Service, or more loosely arranged in collegiate fashion between the Judges of a particular Court. They are all expected to work within defined times and periods, whether they be rigidly laid down or managed by the Judges themselves with a greater degree of flexibility. They are not free agents to work as and when they choose, as are self-employed persons. Their office accordingly partakes of some of the characteristics of employment -”.

185. The Supreme Court approved those observations when considering the position of part-time Judges in O’Brien v Ministry of Justice [2010] UKSC 34. It is therefore beyond argument that Judges, at whatever level, are workers for the purposes of European law. The same must apply of necessity to police constables. The essential nature of their employment and their independence in the context of their statutory office is essentially the same. The deeming provisions contained in the Working Time Regulations which purport to deem police constables to be workers are therefore superfluous and unnecessary.

186. It does not seem to the tribunal to be of any significance that the position in Perceval-Price and in O’Brien concerned the total exclusion of the relevant parties from rights guaranteed under European law rather than, as in the present case, the exclusion of a significant part of those rights. If the principle of equivalence has to any real application, it must apply in situations where the remedy afforded to someone who is not given the rights guaranteed by European law is less favourable than those afforded in similar domestic actions. It is not restricted to the narrow band of situations where the right is totally, rather than partially, excluded.

187. The fact that “workers” within the context of European law are denied the same level of remedy in relation to an EU right as that afforded to other workers in relation to holiday pay claims is as clear an example as one could find of the type of situation which should be covered by the principle of equivalence.

The tribunal therefore unanimously concludes that the principle of equivalence is engaged.

Third Legal Issue

(iii) Since the doctrine of equivalence does apply, can the tribunal read the legislation in such a way as to assume jurisdiction under the 1996 Order, or to extend the remedy available to the police officer claimants under the Working Time Regulations?

188. This question has to be judged against the background set out in jurisprudence that the right to annual unpaid leave of at least 20 days per year is a fundamental right guaranteed by European law from which there should be no derogation and in respect of which Member States should not be allowed to avoid or to minimise their responsibilities. Financial or budget concerns are not relevant.

189. In Dominguez v Centre Informatique Du Centre Ouest Atlantique [2012] IRLR 321, the CJEU stated;

“16. In that regard it should be noted that, according to settled case law, the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of European Union social law from which there can be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time.”

In that particular case a provision in a national collective agreement precluded annual leave entitlement in respect of absences as a result of illnesses of 12 consecutive months or more. The Court determined;

“17. Thus, Directive 93/104 must be interpreted as precluding Member States from unilaterally limiting the entitlement to paid annual leave conferred on all workers by applying a pre-condition for such entitlement which has the effect of preventing certain workers from benefiting from it.”

190. In the present claims, the right to fully paid annual leave was not provided, and is still not provided, by the respondents to the extent required by European law as clarified by Bear Scotland. The pattern domestically had been for holiday pay to be calculated solely on the basis of basic pay until that was clarified. In short the right to paid annual leave calculated in accordance with the Directive has been significantly curtailed.

191. In Marleasing v La Comercial Internacional de Alimentacion [1990] ECR-1 3135 ECJ the CJEU stated;

“In applying national law, whether the provisions in question were adopted before or after the Directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter and thereby comply with the third paragraphs of Article 189 EEC.

[Tribunals emphasis]

It follows that the requirement that national law must be interpreted in conformity with Article 11 of Directive 68/151 precludes the interpretation of provisions of national law relating to public limited companies in such a manner that the nullity of a public limited company may be ordered on grounds other than those exhaustively listed in Article 11 of the Directive in question.”

192. The decision in Marleasing therefore provides that a national court is under a duty to interpret the domestic provisions in the light of the purpose of the Directive. However it makes plain that that duty has a limitation. The national court can only do so to the extent that it is possible.

193. In Perceval-Price (see above) the Court of Appeal stated;

“It may be seen from the decision in Marleasing that there was a true issue of interpretation in that case. The Spanish Court could interpret the provision of domestic law so as not to apply all the nullity provisions relating to contracts to the nullity of public limited companies. The statutory provisions with which we are concerned in the present case do not in our view admit of the same approach. It is not in our view possible to interpret Section 1(9) of the 1970 Act or Article 82(2) of the 1976 Order in any way but its plain meaning, that persons holding statutory offices are excluded from the application of the legislation. To hold otherwise would amount to deletion of portions of the legislation, not interpretation. We therefore cannot agree with the reasoning of the tribunal when it purported to interpret the Act and the Order in a way that it would include the respondents.”

194. The Court of Appeal went on to state;

“The same effect can in our view be achieved, however, by a similar but divergent route, that of disapplying provisions inconsistent with the requirements of applicable Community law. The principle is conveniently summarised in Brealey and Hoskins, Remedies in EC law, second edition page 53:

“The entry into force of a Community measure which is directly applicable or directly effective:

(a) renders any conflicting provision of national law automatically inapplicable;

(b) precludes the valid adoption of new national legislative measures to the extent to which they would be incompatible with the Community measure;

(c) imposes an obligation on national courts, of their own motion if necessary, to refuse to apply any national legislative measure, even a subsequent one, which is incompatible with the Community measure”.

The principle was laid down by the Court of Justice in Amministrazione delle Finanze v Simmenthal SpA [1978] ECR 628. In paragraphs 17 and 21 of its judgment, the Court stated:

“17. Furthermore, in accordance with the principle of the precedence of Community law, the relationship between provisions of the Treaty and directly applicable measures of the Institutions on the one hand and the national law of the Member States on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but – insofar as they are an integral part of, and take precedence in, the legal order applicable to the territory of each of the Member States – also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with the Community provision. –

21. It follows for the foregoing every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule.””

195. The Court of Appeal concluded that the tribunal had wrongly deleted the inclusion of persons holding a statutory office. It referred to other case law and concluded that “the conflicting provisions” in domestic law could be simply disapplied. They consisted of the phrase in Section 1(9) of the 1970 Act and Article 82(2) of the 1976 Order, “other than the service of a person holding a statutory office”.” The distinction between deleting a phrase and disapplying that phrase is a fine one.

The Court of Appeal concluded, in any event, that those words were inconsistent with the requirements of Article 109 of the Treaty and the Directives.

196. The tribunal is conscious that it is a statutory tribunal which must operate within the limits of its jurisdiction. Nevertheless, as in Perceval-Price, the tribunal is under an obligation to disapply any provision of domestic law which conflicts with the obligations imposed on the Member State by the Working Time Directive.

The EAT stated in Biggs v Somerset County Council [1995] IRLR 452 that:

“Thus in the exercise of its statutory jurisdiction, the Industrial Tribunal is bound to apply and enforce relevant Community law and disapply an offending provision of United Kingdom domestic legislation to the extent that it is incompatible with Community law, in order to give effect to its obligation to safeguard enforceable Community rights.

197. The obligation on the present tribunal is not limited solely to disapplying incompatible domestic provisions. It is to interpret domestic law (either or both the Working Time Regulations and the 1996 Order) in a way which is compatible with EU law. That obligation is all the more pressing because of the importance placed upon the Directive by the CJEU, and by the need to ensure that Member States, or emanations of those Member States, do not derogate from or avoid the obligations placed on them by the Directive.

198. The difficulty lies in the meaning of the words “so far as possible” as set out in Marleasing and as considered by the Court of Appeal in Perceval-Price.

199. In Attridge Law v Coleman, the EAT (Mr Justice Underhill) put that difficulty in the following terms;

“11. It is a principle of EU law that the courts and tribunals of member states should “so far as possible” interpret domestic legislation in order to give effect to the states obligations under EU law, typically arising under a Directive: the locus classicus is the decision of the European Court of Justice in Marleasing SA v La Comercial Internacionial de Alimentacion SA [1990] ECR 1‑4135. It is now well established in UK law that pursuant to that obligation a court or tribunal can in some circumstances go beyond the traditional strict limits of statutory construction and can read words into a statute in order to give effect to EU legislation which the statute was evidently intended to implement. Well known examples in the employment field are the decisions of the House of Lords in Pickstone v Freemans PLC [1989] EAC 66 and Litster Forth Dry Dock and Engineering Company Limited [1990] 1 AC 546. But it is, equally, acknowledged that it is not legitimate in every case: that is recognised by the phrase “so far as possible”. The difficulty is to define the touchstone for distinguishing between the two types of case, or – to put it another way – to define the limits of what is “possible”.”

200. The Court of Appeal in Perceval-Price was considering a situation where a neat and easy solution was obvious on the face of the legislation; the “disapplication” of a short phrase. Other decisions have indicated that it can be appropriate to go much further than the simple isolation of a single short phrase. The current position appears to be that it is permissible, if not obligatory, to go considerably further and even to insert additional words into the domestic legislation to give effect to EU law, provided that doing so does not go against the grain of the domestic legislation.

201. In a case which concerned the right of a surviving same-sex partner to succeed to a tenancy in the same way as a surviving husband or wife, the House of Lords considered the obligation placed on courts under Section 3 of the Human Rights Act 1998 to interpret legislation in a way which is compatible with convention rights “so far as it is possible to do so”.

In this respect, the House of Lords relied on and referred to the analogy between that obligation in relation to convention rights and the obligation under the Treaty and under Marleasing in relation to EU rights.

202. In that case, Ghaidan v Godin-Mendoza [2004] 2 AC 57, at paragraph 45, the House of Lords stated;

“Instead the draftsman had resort to the analogy of the obligation under the EEC Treaty on national courts, as far as possible, to interpret national legislation in light of the wording and purpose of Directives. In Marleasing SA v La Comercial Internacionial de Alimentacion SA [1990] ECR 1‑4135, the European Court of Justice defined this obligation as follows:

“It follows that, in applying national law, whether the provisions in question were adopted before or after the Directive, the national court called upon to interpret it is required to do so, so far as is possible, in light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.”

Given the undoubted strength of this interpretative obligation under EEC law, this is a significant signpost to the meaning of Section 3(1) in 1998 Act.”

203. The House of Lords further stated;

“118. - both Pickstone v Freemans PLC [1988] 2 ALL ER 803 and Litster v Forth Dry Dock and Engineering Company Limited [1989] 1 ALL ER 1134 show how, long before 1998, this House has found it possible to read words into domestic Regulations so as to give them a construction which accorded with the provisions of the underlying Community Directive. As Lord Oliver of Aylmarton noted in Litster at page 1153, Pickstone’s case had established that:

“The greater flexibility available to the Court in applying a purposive construction to legislation designed to give effect to the United Kingdom’s treaty obligations to the Community enables the Court, where necessary to supply by implication words appropriate to comply with those obligations -”.

204. The House of Lords further stated in paragraphs 121-124 of Ghaidan;

“121. For present purposes, it is sufficient to notice that cases such as Pickstone and Litster suggest that in terms of Section 3(1) of 1998 Act, it is possible for the courts to supply by implication words that are appropriate to ensure that legislation is read in a way which is compatible with convention rights. When the court spells out the words that are to be implied, it may look as if it is “amending” the legislation, but that is not the case. If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute.

122. When Housman addressed the meeting of the Classical Association in Cambridge in 1921, he reminded them that the key to the sound emendation of a corrupt text does not lie in altering a text by changing one letter rather than by supplying half a dozen words. The key is that the emendation must start from a careful consideration of the writer’s thought. Similarly, the key to what is possible for the Courts to imply into legislation without crossing the border from interpretation to amendment does not lie in the number of words that have to be read in. The key lies in a careful consideration of the essential principles and scope of the legislation being interpreted. If the insertion of one word contradicts those principles or goes beyond the scope of the legislation, it amounts to impermissible amendment. On the other hand, if the implication of a dozen words leaves the essential principles and scope of the legislation intact but allows it to be read in a way which is compatible with Convention Rights, the implication is a legitimate exercise of the powers conferred by Section 3(1). Of course, the greater the extent of the proposed implication, the greater the need to make sure that the Court is not going beyond the scheme of the legislation and embarking upon amendment. Nevertheless, what matters is not the number of words but their effect. For this reason, in the Community law context, Judges have rightly been concerned with the effect of any proposed implication but had been relaxed about its exact form. See, for example, Lord Keith of Kinkel and Lord Oliver of Aylmerton in Pickstone v Freemans PLC [1988] 2 ALL ER 803.

123. Attaching decisive importance to the precise adjustments required to the language of any particular provision would reduce the exercise envisaged by Section 3(1) to a game where the outcome would depend in part on a particular turn of phrase chosen by the draftsman and in part on the skill of the court in devising brief formulae to make the provision compatible with convention rights. The statute book is the work of many different hands in different Parliaments over hundreds of years and, even today, two different draftsmen might choose different language to express the same proposition. In enacting Section 3(1), it cannot have been the intention of Parliament to place those asserting their rights at the mercy of the linguistic choices of the individual who happened to draft the provision in question. What matters is not so much the particular phraseology chosen by the draftsman as the substance of the measure which Parliament has enacted in those words. Equally it cannot have been the intention of Parliament to place a premium of the skill of those called upon to think up a neat way round the draftsman’s language. Parliament was not out to devise an entertaining parlour game for lawyers, but, so far as possible, to make the legislation operate compatibility with convention rights. That means concentrating on matters of substance, rather than on matters of mere language.

[Tribunal’s emphasis]

124. Sometimes it may be possible to isolate a particular phrase which causes the difficulty and to read in words that modify it so as to remove that incompatibility. Or else the court may read in words that qualify the provision as a whole. At other times the appropriate solution may be to read down the provisions so that it falls to be given effect in a way that is compatible with the convention rights in question. In other cases the easiest solution may to be put the offending part of the provision into different words which convey the meaning that will be compatible with those rights. The preferred technique will depend on the particular provision and also, in reality, on the person doing the interpreting. This does not matter since they are simply different means of achieving the same substantive result. However, precisely because Section 3(1) is to be operated by many others besides the courts, and because it is concerned with interpreting and not with amending the offending provision, it respectfully seems to me that it would be going too far to insist that those using the Section to interpret legislation should match the standards to be expected of a parliamentary draftsman amending the provision; CFR v Lambert [2002] 2 AC 545, 585, paragraph 80, per Lord Hope of Craighead. It is enough that the interpretation placed on the provision should be clear, however it may be expressed and whatever the precise means adopted to achieve it.”

205. The House of Lords has therefore gone considerably further than the Court of Appeal in Perceval-Price. It has specifically stated that it is permissible to read in words which effectively provide a substantial amendment to the domestic legislation provided that it complies with the convention rights or in this case the community rights in question and, provided that it does not go against the grain of the legislation. The House of Lords states specifically that the choice of implied amendment, and the particular form of words adopted, is not the crucial issue and that ordinary standards of parliamentary drafting are not to be expected.

206. Applying those principles, the House of Lords in Ghaidan interpreted the words “wife or husband” in the Rent Act 1977 to include “a same-sex partner”. That is not what Parliament had intended or contemplated in the 1977 Act. The implied amendment introduced by the House therefore did some considerable violence to the words of the Act. It went considerably further therefore than the Court of Appeal in Perceval-Price felt able to go or perhaps more properly, felt required to go in simply disapplying a short phrase. That simpler form of amendment was not open to the House of Lords in relation to the 1977 Act.

207. Further, in Attridge Law, the EAT felt able to add the concept of “associative discrimination” to the Disability Discrimination Act 1995. Again, that concept had not been contemplated by Parliament in drafting the 1995 Act. It was a new concept which extended significantly the wording of that Act. Again it went considerably further than the Court of Appeal in Perceval-Price felt it had been necessary to go. Therefore, in both Ghaidan and Attridge Law, the court adopted a significantly liberal and expansive approach to the duty to interpret, as far as possible, in conformity with either the Convention or with EU law.

208. In HMRC v IDT Cards Services Ireland Limited [2006] EWCA Civ 29, the Court of Appeal considered the extent to which domestic VAT legislation should be interpreted to conform with the Sixth EC VAT Directive (77/338/EC). Lady Justice Arden stated;

“81. The approach described above makes it clear that, while under European Union law the member states are bound to interpret national legislation so far as possible in conformity with the wording and purpose of a directive, it is for domestic law to determine how far the domestic court can change other provisions of purely domestic law to fulfil this obligation. Thus in this situation the national court is not concerned to ask what interpretative approach is adopted by the courts of other member states of the European Union. The question how far it can go under the guise of interpretation, and whether it can for instance adopt what would otherwise be regarded as a strained construction, is a matter for domestic law.

82. Normally when construing domestic legislation the English courts must find the meaning of the words which Parliament has used. In the context, however, of legislation which requires to be construed in a way which is compatible with European Union law or with the rights conferred by the European Convention of Human Rights the English courts can adopt a construction which is not the natural one. The process, however remains one of interpretation: the obligation imposed by the Court of Justice is only to interpret national law in conformity with the directive “so far as possible”. That raises the question when a process ceases to be that of legitimate interpretation and trespasses into the field of law making that is the task of Parliament and not the courts.”

209. Lady Justice Arden pointed out that there will be cases where it is impossible to interpret a domestic provision in conformity with EU law, even where a liberal or expansive approach is adopted as in Ghaidan or in Attridge Law. She referred to one such instance; the decision of the House of Lords in Imperial Chemical Industries v Colmer (No 2) [1999] 1 WLR 2035. However that one example is a decision on a unique set of facts. The CJEU had, on an earlier reference, determined that a residence requirement was precluded by Article 52 (old numbering) of the Treaty if the case was subject to European Community law. However the Colmer case fell outside the scope of Community law because the relevant business had been wholly or mainly involved in non-member states. The CJEU determined that in the circumstances, the English court was not required to interpret the legislation in conformity with Community law. ICI contended that the ruling of the CJEU made the domestic legislation, as a matter of domestic construction, unsustainable. It argued for a distinction to be read into that domestic legislation which differentiated between companies which were resident in the UK and companies which were resident in other member states. The House of Lords declined to do so. The House of Lords, stated:

“The possibility remains, however, that Parliament based S.258 of the 1970 Act upon that dichotomy but simply and understandably failed to anticipate the effects upon it of the 1972 Act. It is not altogether surprising that the latter Act should prevent the criterion of UK residence from prevailing over Community rights conferred by Article 52. It is true that the result is to increase the number of oddities and anomalies which the definition of “holding company” creates and to which are referred to in my earlier speech. That, however, is a matter for the consideration of the legislature rather than your Lordships.”

It is therefore a decision on its own narrow facts. It provides no real assistance on when a court or tribunal may interpret domestic legislation in conformity with Community law.

210. However Lady Justice Arden stated that “further guidance is now provided by” Ghaidan. She emphasised the analogy between the duty placed upon courts under Section 3 of the 1998 Act and that placed upon courts by Marleasing and by the Treaty. She stated;

“89. The critical point made by the House of Lords in the Ghaidan case can be found in the passage from the speech of Lord Nicholls which I have set out above. Lord Nicholls accepts that the effect of interpretation in accordance with Section 3 of the 1998 act may be to the change the meaning of the legislation but, as he explains, the meaning adopted by the court must not conflict with the fundamental feature of the legislation. He adopts the words of Lord Rodger that the interpretation chosen by the court must “go with the grain of the legislation”. Lord Nicholls, Lord Steyn and Lord Rodger all accepted that there would be occasions when the courts could not adopt an interpretation that would make the legislation compatible with Convention Rights because that would involve making policy choices which the court was not equipped to make -. It is also clear from the Ghaidan case that the interpretation of legislation under Section 3 or the Marleasing principle may involve a substantial departure from the language used though it will not involve a departure from the fundamental or cardinal features of the legislation. It is possible to read the legislation up (expansively) or down (restrictively) or to read words into the legislation. The question of whether Section 3 can be applied does not depend on whether it is possible to solve the problem by a simple linguistic device”.

[Tribunal emphasis]

211. While it is clear, as indicated above, that the Ghaidan case involved primarily Section 3 of the 1998 Act and the Convention, the principles which are set out are equally applicable to the requirement to interpret legislation in conformity with Directives under the Marleasing principle and in accordance with the Treaty. Lady Justice Arden went on to discuss this in some detail at paragraph 92 of her decision. She stated;

“Accordingly, I consider that the differences in concept between Section 3 interpretation and interpretation under the Marleasing principle are more apparent than real. As already stated, I consider that the Ghaidan case is a helpful guide when determining the interpretation under the Marleasing principle. I see no reason why the same robust technique used to make legislation compatible with the ECHR should not equally apply to make domestic legislation comply with the laws of the European Union.

Further, she stated at paragraph 114 that;

“As the Ghaidan case shows, it is not an objection to interpretation of this nature that it amends the language used by Parliament.”

212. The Directive provides in clear terms the right to 20 days paid leave per annum. It is not a right to 20 days partly paid leave. The leave must be fully remunerated. The methods and procedures whereby that right is to be provided are left to Member States. However what is not left to a Member State is the right to significantly restrict that right in relation to a category of “workers” as defined for the purposes of European law.

213. The questions for the present tribunal at this stage in relation to the third legal issue are;

(i) is the domestic definition of “worker”, and therefore the exclusion of police officer claimants in Article 3(3)(b) of the 1996 Order incompatible with Community law?

(ii) Is the three month limit on arrears in relation to claims under the Working Time Regulations incompatible with Community law?

(iii) If so, what can the Industrial Tribunal do, as a matter of interpretation, using a “robust approach” to use Lady Justice Arden’s phrase, to ensure the proper enforceability of Community rights?

It is clear, in relation to (i) and (ii) above, that the exclusion of police officer claimants, under either the 1996 Order, or under the Working Time Regulations from the right to recover a series of deductions back to 1998 breaches the principle of equivalence and is therefore incompatible with Community law.

The remaining question for the third legal issue is what, if anything, can the tribunal do about it in terms of either the 1996 Order or the Working Time Regulations?

214. There is a gross unfairness and a clear lack of equivalence in relation to a fundamental right provided by European law. That incompatibility with European law requires a “robust approach” to secure compatibility.

Such an approach has been employed in the decisions referred to above. In Ghaidan, the protection afforded by the Rent Act 1977 was extended to same-sex partners where on the face of the legislation, it had been restricted to spouses. In Attridge Law, an entirely new concept of “associative disability” was added to the Disability Discrimination Act 1995. In neither case, had the changes been contemplated by the legislature when the relevant legislature had been originally drafted and enacted.

215. It is important that, in securing compatibility, the tribunal does not go against “the grain of the legislation”. That “grain” to be derived from the context.

In the present claims, the context of the Working Time Regulations is the transposition of the Working Time Directive, affording a fundamental right equally to all workers. The police officer claimants are “workers” for the purposes of the Directives and therefore for the purposes of the Regulation without the need for the deeming provisions.

216. While the normal standards of parliamentary drafting are not applicable, and while the precise wording or linguistic device adopted is not important, the tribunal’s view is that to secure compatibility and equivalence, words need to be read into the Working Time Regulations to allow the same right to recover a series of underpayments as that provided by the 1996 Order to other workers in a comparable domestic action.

217. Therefore, Regulation 30 of the 1998 Regulations and Regulation 43(2) of the 2006 Regulations should be amended to include the words at the end of Regulation 30(2)(a) (1998) and Regulation 43(2)(a) (2016);

“Where a complaint is made under the Regulations, in respect of a series of incidents where it is alleged that the exercise of a right should have been permitted, before the end of three months beginning with the last date in the series or.”

Those amendments are consistent with and do not exceed the grain or the purpose of the Regulations. They ensure compatibility with European law.

Fourth Legal Issue

(iv) “How is normal pay to be determined for the purposes of holiday pay entitlement under the appropriate remedy in domestic law?

(a) What is the appropriate reference period or periods for calculating normal pay?

(b) Should that reference period or periods be varied or extended in individual cases to take account of maternity related absences, disability related absences or absences related to a reserve forces call up? Are there any other reasons for the variation or extension of an appropriate or standard reference period?

(c) Do the allowances paid to civilian employees form part of normal pay for the purposes of calculation of holiday pay?

(d) Is voluntary overtime worked by civilian employees to be included in the calculation of holiday pay in the same way as non-guaranteed overtime?

218. The parties agreed that it had been the common understanding among employers and employees that holiday pay should only have been calculated by reference to basic pay, at least until the decision in Williams and Others v British Airways PLC [2012] 1 CMLR 23, a decision which issued in September 2011.

219. In that case the pilots had been paid a fixed annual sum together with supplementary payments which had been based firstly on the time spent flying and secondly on the time spent away from the pilot’s home base. The payment of annual leave was calculated solely by reference to the fixed annual sum. The CJEU determined that workers had to receive their normal remuneration for the period of paid annual leave. The CJEU determined that “any inconvenient aspect which was linked intricately to the performance of the tasks which the worker was required to carry out under his contract of employment and in respect of which a monetary amount was provided which was included in the calculation of the worker’s total remuneration such as, in the case of airline pilots, the time spent flying, had necessarily to be taken into account when assessing holiday pay. Components of a worker’s remuneration which were intended to exclusively cover ancillary costs arising at the time of the performance at the tasks need not be taken into account in the calculation of holiday pay. It was for the national court to assess the link between the various components which made up the total remuneration of the worker and the performance of work related duties. That assessment had to be carried out on the basis of an average over a reference period which was judged to be a representative period.”

220. The Advocate General stated at AG 47;

“In the view of the Court, the purpose of the requirement of payment for annual leave is to put the worker, during such leave, “in a position which is, as regards remuneration, comparable to periods of work”.

She went on to state;

“That clarification must be taken to mean that the level of holiday pay must correspond exactly to that of normal remuneration”.

221. The Advocate General went on to state at AG 51;

“- it is necessary to ensure, by way of a teleological interpretation of Article 7(1) of the Working Time Directives, that the aims of those Directives are not frustrated by improper implementation. In particular, it is necessary to ensure in this regard that the worker does not suffer any disadvantage as a result of deciding to exercise his right to annual leave. A prime example of such a disadvantage is any financial loss which, depending on the initial situation, would deter him from exercising that right.”

222. The Advocate General stated at the AG 77;

“In principle, the broad definition of pay in Article 141(2)EC covers not only the remuneration payment strictly as consideration for the work undertaken but also any additional components such as bonuses, supplements and allowances, concessions granted by the employer and ex gratia payments. The Court has certainly recognised as pay, within the meaning of that provision, allowances based on the criterion of mobility, that is to say, allowances which reward the worker’s readiness to work at different times. Consequently, an allowance for inconvenient working hours, overtime pay and overtime pay for training course attendance, the duration of which exceeds the individual working hours have also been regarded as coming within the scope of that definition. Logically, then, that category would necessarily also include pay supplements for overtime, supplements for working on public holidays, shift allowances and any comparable payments.”

[Tribunal’s emphasis]

223. The Advocate General stated at AG 82;

“As indicated at the outset, the concept of “normal remuneration” also has a temporal component. According to the natural meaning of the word, “normal” can only refer to something which has existed over a certain period of time and can later be used as a point of reference for comparison. As the Commission and the appellants in the main proceedings rightly point out, that expression essentially implies that remuneration which itself fluctuates at regular intervals is levelled out to an amount representing average earnings. As the parties to the proceedings rightly recognise, the determination of “normal remuneration” necessarily requires a sufficiently representative reference period but there are various different periods capable of being relied on for this purpose and the main proceedings.

[Tribunal’s emphasis]

The Opinion indicates that if overtime or other payments are something which should be taken into account as normal pay, they should be included in the calculation of holiday pay. In short, any payment in respect of “any inconvenient aspect which is linked intricately to the work” must be included in the calculation of normal pay for the purposes of holiday pay. Payments in respect of expenses or costs incurred in carrying out those duties should be disregarded. Normal pay must be assessed by reference to an appropriate representative period to be fixed by the tribunal.

224. There is no dispute between the parties that overtime payments, or at least non- guaranteed overtime payments should be included in the calculation of holiday pay. The main dispute is in relation to the appropriate reference period.

225. It is clear that:

(i) the claimants (and the respondents) define their pay in annual terms. They are not regarded as being on an hourly rate, a weekly rate or a monthly rate.

(ii) Overtime payments can fluctuate on a regular and predictable basis according to the time of year.

(iii) Overtime payments can fluctuate on an unpredictable basis in accordance with local demands or political developments.

(iv) The situation can vary between police constables, with some police constables working overtime primarily in July and August, others working overtime on a regular basis for every week of the year and yet others working very irregular or minimal overtime.

226. The respondents argue that the appropriate reference period should be 12 weeks. The claimants argue that it should be 12 months.

227. The claimants also argue that the appropriate reference period should be varied or extended to take account of maternity leave absence, disability absence, sick absence, injury on duty absence and absences due to reserve forces call out. The respondents do not accept that this is the situation.

228. In the situation going forward following the letter in August 2018 from the Chief Constable to the claimants, the claimants are, subject to Departmental approval, to receive holiday pay including overtime averaged out over a period of 12 months. The GB settlement arrangement in 2014 similarly used a reference period of 12 months. The respondents argue that this should not be taken into account in relation to the present decision as these time periods were selected for “administrative convenience”.

229. There is no dispute between the parties that the position in relation to the calculation of holiday pay was misunderstood by both employers and employees until the matter was resolved as a result of case law; notably the case of Williams v British Airways which issued in September 2011 and the decision in Bear Scotland which issued in 2014.

230. It is not in dispute between the parties that the entitlement to 20 days paid annual leave under the Working Time Directive is one of the fundamental rights guaranteed under EU law. Pay has to be defined broadly and it is not simply basic pay. It also covers payments that include overtime and allowances intricate to the work that the employee/worker is obliged to perform, but excluding the simple reimbursement of expenses.

231. The purpose of the Working Time Directive, to safeguard the health of workers or employees by ensuring sufficient periods of properly remunerated annual leave, is similarly not in dispute. Equally, it is not in dispute that it is for national tribunals to decide what normal pay is in individual cases where remuneration is complex or fluctuating. It is also not in dispute than in a situation where pay fluctuates, normal pay must be assessed by considering a sufficiently representative reference period. It is for the national tribunals to decide what the appropriate period is in each case.

232. The difficulty in all of this is that if EU or domestic legislation leaves the determination of an appropriate reference period to the individual court or tribunal dealing with each claim and does not specify an arbitrary or fixed reference period to be applied in all cases and does not set out guidelines for the determination of an appropriate reference period, it does not seem appropriate to fix a single “representative reference period” which would cover all the varied types of employment raised in the current claims or raised generally before this tribunal. As the claimants point out in their closing submissions;

“The simple fact is that the reference period must be long enough to be representative of a claimant’s working pattern.”

This must be done by reference to each individual claimant. A reference period cannot be fixed by a tribunal in a general or arbitrary manner. What may be a representative reference period for one individual claimant with his or her own pattern of employment may well not be a representative reference period for another claimant with a different pattern of employment. It will require individual analysis and decision-making on a case by case basis. The current claimants divide into two broad groups; the police worker claimants and the civilian employee claimants. Within each group, the duties carried out by the individual claimants, the hours for which they work and the overtime and allowances which form part of their remuneration vary significantly; both between claimants and from time to time for each claimant.

233. If a particular claimant eg a police officer claimant working in the close protection unit, works relatively standard and significant overtime which rarely alters, an appropriate and representative reference period may well be simply 12 weeks. In relation to that particular claimant, the pattern of earnings will be relatively standard from week to week, month to month and year to year. The position will be different in relation to other police officer claimants eg a police officer claimant who is attached to a local station in a quiet area, where overtime may well be relatively minimal for most of the year and may become substantial during July and August where that police officer is engaged in duties related to the marching season, and in relation to duties covering for other police officers absent on annual leave with their families during the school holidays. In such a case, it may well be arguable that an appropriate and representative reference period would be 12 months to look at the relevant claimants “normal pay” in the ordinary sense of that term.

234. Similarly, in relation to the civilian worker employees, their overtime and allowances will vary significantly depending on the particular cases to which they are allocated, local demands and staff shortages generally. It may well be that a particular civilian employee claimants’ earnings are relatively standard and, while they contain overtime and allowances, they do not alter to any particular extent from month to month or indeed from year to year. The opposite will again apply in relation to other civilian employee claimants.

235. This is one of those situations where the issue must be determined by reference to the individual facts of each individual case. It is not for the tribunal to fix any arbitrary or standard reference period where the determination of that reference period is expressly left to each tribunal to determine, not as a general point, but in relation to the individual facts of each separate case. As the Advocate General pointed out in Williams AG82 “there are various different periods capable of being relied on for this purpose -.”

236. It is noted by the tribunal that there are significant administrative reasons for adopting a straightforward 12 month reference period. That is what was done in Great Britain in relation to the settlement reached there between the various police forces and the police federation. That again is what is proposed in Northern Ireland by the respondents for the period going forward, following the letter from the respondents to the claimants’ solicitors in August 2018. The respondents urge that that acceptance of a 12 month period for future holiday pay claims is no more than a “matter of convenience”. The tribunal accepts that that is the case and further determines that it would not be appropriate for it to fix any arbitrary or general reference period when the subject matter of these claims is so varied.

However there is much to be said for administrative convenience.

237. Turning to the second sub question ie whether or not the appropriate representative reference period should be extended to take account of various types of absences from duty, the answer must be again that the appropriate representative reference period must be assessed on an individual case by case basis. The purpose of a reference period is to assess what the “normal pay” was in each individual case. If an individual worker/employee has been absent for substantial periods from duty, that, as a matter of common sense, must mean that in assessing the length of the representative reference period, account should be taken of absences from duty and therefore absences from the opportunity to take holiday pay, which occur for whatever reason.

238. However this is not the type of situation where the parties, much less the tribunal, have the luxury of painstakingly going through each individual claim and spending hours staring at spreadsheets before reaching individual determinations in respect of each such claim. There is again much to be said for administrative convenience and for a broad agreement to be reached between the parties on a common sense basis.

239. Turning to the third sub question under this heading; ie what allowances paid to civilian worker employees form part of normal pay for the purposes of the calculation of holiday pay? The answer is that all the allowances, with the exception of the meal allowances, are clearly payments which have an intricate link to the nature of the duties to be carried out by the worker/employee and should therefore be included in the calculation of holiday pay.

240. In relation to the meal allowances [however described], those allowances are to a significant extent meant to act as compensation or reimbursement in relation to expenses incurred in the provision of a meal. They should therefore not be included. The fact that they are regarded, apparently completely, as subject to income tax and to statutory deductions is puzzling, but that does not change the essential nature of the allowances.

241. Turning to the fourth sub question under this heading; whether voluntary overtime worked by civilian worker employees to be included in the calculation of holiday pay? The answer has to be that it should be included. The matter was conceded and determined by the Court of Appeal in Patterson v Castlereagh Borough Council. In any event, given the logic behind Williams and Bear Scotland, there can be no rational argument that voluntary overtime should be excluded from the calculation of holiday pay if that voluntary overtime, taken over in an appropriate reference period, be deemed to be sufficiently regular to form normal pay. The issue was not the subject of any argument by the respondents, although it was not expressly conceded on their behalf

Fifth Legal Issue

(v) “In respect of any claimant who has a claim under Articles 45 and 55 in the 1996 Order, how is a “series” of deductions to be defined?

(a) Was Langstaff J correct in Bear Scotland v Fulton [2015] 1 CMLR 40 to determine that any such series is automatically broken by a gap of three months or more between relevant deductions ie between relevant calculations of holiday pay?

(b) Is a “series” of deductions broken where a gap in relevant deductions is due to maternity related absence, disability related absence, sick absence, injury on duty absence or absence because of a reserve forces call up? Is a “series” of deductions broken where the absence was simply a matter of personal choice?

(c) Is a series of deductions broken where there are compliant deductions; ie where holiday pay is calculated without including overtime or allowances in respect of the eight additional days awarded by the Working Time Regulations or the two additional days awarded as part of the conditions of service?

242. Under Articles 45 and 55 of the 1996 Order, the claimants argue that they can seek payment of unauthorised deductions (incorrect holiday calculations) for each relevant occasion which occurred within the three months before the date of claim, or crucially, if there had been a “series” of such deductions, when the last deduction in that series had occurred in the three months before the date of claim, for that entire series. The claimants argue that such a claim can extend back to 1998 when the Working Time Regulations came into force or to the date on which the first incorrect holiday pay calculation was made; whichever date is the later.

The respondents argue that any such series is automatically broken by any gap of three months, by any compliant payments of holiday pay (by any payments of holiday pay in respect of days other than the 20 days guaranteed by the

Working Time Directive), and by gaps caused by sick absence, maternity, maternity related illness, disability absence, reserve forces call up or by any other factor.

243. In Bear Scotland, Langstaff J held, at EAT level, that a gap of three months broke a series for the purposes of the equivalent provision in Great Britain. He stated;

“79. Whether there has been a series of deductions or not is a question of fact: “series” is an ordinary word, which has no particular meaning. As such in my view it involves two principal matters in the present context, which is that of a series through time. These are first a sufficient similarity of subject matter, such that each event is factually linked with the next in the same way as it is linked with its predecessor; and second, since such events might either be stand‑alone events of the same general type, or linked together in a series, a sufficient frequency of repetition. This requires both a sufficient factual and a sufficient temporal, link.

80. I accept Ms Rose QC’s submission that the precise force of the word, common though it is, has to be understood in its legislative context. That is one in which a period of any more than three months is generally to be regarded as too long a time to wait before making a claim. The intention is that claims should be brought promptly. I doubt therefore that the draftsman had in mind that a deduction separated by a year from a second deduction of the same kind would satisfy the temporal link. It would have been perfectly capable of justifying a claim at that time, and within three months of it. Whereas when considering a series, as when considering whether there has been “conduct extending of a period” (the analogous provision in the Equality Act 2010) some events in a series may take colour from those that come either earlier or later, or both, so that the factual similarities can only truly be appreciated when a pattern of behaviour is revealed, the essential claim here is for payment in a sum less than for which there is a contractual entitlement. The colour of such a deduction is, although not inevitably, at least likely to be clear within a short time after it occurs, if not at that time.

81. Since the statute provides that a tribunal loses jurisdiction to consider a complaint that there has been a deduction from wages unless it is brought within three months of the deduction or the last of a series of deductions being made (Section 23(2) and (3) ERA 1996 taken together) (unless it was not reasonably practicable for the complaint to be presented within the three month period, in which case there may be an extension for no more than a reasonable time thereafter) I consider that Parliament did not intend the jurisdiction could be regained simply because a later non-payment, occurring more than three months later, could be categorised as having such similar features that it formed the part of the same series. The sense of the legislation is that any series punctuated from the next succeeding series by a gap of more than three months is one in respect of which the passage of time has extinguished the jurisdiction to consider a complaint that it was unpaid.”

244. It is clear that Langstaff J was, with respect, correct to hold that the word “series” is an ordinary word with no particular legal definition. The 1996 Order and its GB equivalent do not seek to define the word for the purposes of Article 55(3)(a) of the 1996 Order (or its GB equivalent). Part II (Interpretation) is silent on the matter. It is clear that he was also correct to point out that elsewhere in the legislation, limitation periods are provided expressly and with clarity.

It seems to this tribunal to be surprising, if it had indeed been intended by the legislature to apply a particular and unnaturally restricted interpretation to the word “series” in this context, particularly where such an interpretation would seriously impact on the extent of a remedy available to a claimant, that that definition was not similarly expressly and clearly provided in the Order. It is perhaps even more surprising when that restricted interpretation would be relied upon to restrict the remedy available in respect of a right conferred by a Community Directive and where such a restricted interpretation is to be inferred from the “sense of the legislation”.

245. As an example of what would have been available to the legislative draftsman, Regulation 16(2) of the Working Time Regulations (Northern Ireland) 1998 provides specifically that Article 17-20 of the 1996 Order will apply for determining the amount of a week’s pay ie the basic pay or non-overtime hours payable to an individual. If it had been intended that the word “series” should be interpreted in a particularly narrow and arbitrary way, irrespective of the individual circumstances of a case and irrespective of the ordinary meaning of the word, the 1996 Order would surely have said so.

On a side issue, the provision in Regulation 16(2) of the Working Time Regulations attracting the provisions of Articles 17 to 20 of the 1996 Order, might at first glance impose a mandatory reference period of 12 weeks. However it is clear that those provisions refer to normal working hours and not to overtime hours.

246. The restricted interpretation of the word “series” contended for by the respondents, would allow an employer to significantly benefit in circumstances where the obligation to provide paid annual leave for a minimum of 20 days under the Working Time Directive has not been allowed at all or when it has not been allowed in full.

247. An extreme example of such a practice is that contained within the decision of King v Sash Windows where the relevant worker was regarded artificially as a self‑employed contractor and had therefore been denied any paid annual leave. As indicated earlier, it does not seem to this tribunal to be significant that the right to paid annual paid leave of at least 20 days is either not allowed at all, or allowed only in part. The important point is that the respondents in the present cases did not properly implement the Working Time Directive. The respondents did not provide, and continue not to provide, 20 days fully paid annual leave.

248. The CJEU in Sash Windows stated;

“91. First, it has long been established in the case law of the Court that Directive 2003/18 treats entitlement to annual leave and to payment on that account as being two aspects of a single right.”

249. The CJEU determined;

“It follows from the above that, unlike in a situation of accumulation of entitlement to be paid annual leave by a worker who was unfit for work due to sickness, an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences”.

250. The tribunal accepts, as indicated above, that the decision in Sash Windows related to an extreme set of circumstances. However the principles derived from that decision are clear and are consistent with earlier case law. A national court should interpret domestic provisions to ensure, insofar as possible, that an employer is not allowed to side step or to avoid the rights guaranteed under a Community Directive. In the present claims, the position has been clear to all parties since 2014. Overtime payments and allowances should have been included, on some basis, within the calculation of holiday pay. Indeed, in GB an agreement was reached between the GB police forces and the police federation on that basis within some weeks of the decision in Bear Scotland. In Northern Ireland, nothing was done for almost four years until a letter issued in August 2018 to the claimants’ solicitors, shortly before the present hearing, which indicated no more than that authority would be sought from the relevant Government Departments to allow future, but not past, calculations of holiday pay to include overtime on a basis which is disputed by the claimants. As far as the tribunal was made aware, that authority has not yet been granted. The present claims appear to highlight a situation where a clear entitlement under the Working Time Directive has been effectively ignored and avoided for a significant period of time and where it continues to be avoided. It is particularly concerning that this has been done by a public authority.

251. It is also clear, and has been commented upon in Harvey (division one, B1, paragraphs 376 onwards) that the EAT in Bear Scotland did not refer to other relevant case law.

252. In Arthur H Wilton Limited v Peebles (UKEAT/835/93) an Employment Tribunal had held that an applicant’s right to recover unlawful deductions under the Wages Act 1996 was limited to a period of three months before the presentation of their claims. Those provisions were analogous to the provisions currently contained in Articles 45 and 55 of the 1996 Order. They included provision in Section 5(3) of that Act for a claim in respect of a series of deductions. The EAT stated;

“If there is a series of deductions, week after week or month after month, the three month period runs from the date of the last deduction. Nothing is said in those provisions which limits the amount that can be recovered as deductions.”

The EAT (Mummery J) went on to hold;

“It is clear from that provision that, if the complaint is well founded, there is no limit on the amount of deductions which can be ordered to be paid by the employer to the worker. In brief, the error of law on the part of the Tribunal was to transpose the three month time limit for bringing a complaint into the provisions which concern the amount which a Tribunal can order an employer to pay in respect of deductions. There is no three month time limit on that. The position in this case is that the deductions continued in a series. The employees presented their applications within three months of the last deduction in that series.”

[Tribunal’s emphasis]

253. The tribunal can fully understand the reasoning put forward by Langstaff J to support his conclusion in Bear Scotland. However the tribunal respectfully concludes that he has fallen into the same error as that identified by Mummery J in the Wilton decision. He has transposed the three month limit on bringing a claim into the definition of a “series”. The respondents in the present case pointed out, quite rightly, that Langstaff J is a senior and experienced Judge with a wide knowledge of employment matters. That is obviously the case. However the same can be said in relation to Mummery J. They are both senior and experienced Judges but they both cannot be right. The tribunal concludes that Langstaff J was incorrect in his conclusions and that Mummery J was correct in his conclusions.

254. Similarly the EAT in Bear Scotland did not refer to the decision of Canada Life v Gray [2004] ICR 673.

In that case an Employment Tribunal had determined that the claimants who had been regarded previously as self-employed commission agents were workers for the purposes of the Working Time Regulations. It also determined that they had been entitled to payment of holiday pay throughout the period of their employment as those failures to pay holiday pay could properly be regarded as a series of deductions. The company employing the workers appealed that decision.

255. The case concerned payments due on the termination of employment. However the issue, for present purposes is the same; ie how is a “series” to be properly defined and whether any such “series” is automatically broken by a three month gap which is transposed, in some way, from the entirely separate three month limitation period for lodging a claim.

In dealing with what the EAT classified as the “second question”, the EAT (Judge Peter Clarke) stated;

“26. The issue in this case is whether the company made a series of deductions, starting with the first holiday year commencing on October 1998 and ending, within the period of three months preceding presentation of the applicant’s complaints to the Employment Tribunal on 30 January 2003.”

The EAT concluded at paragraph 46 that;

“The simple fact is that this employer failed or refused to pay any holiday pay from the introduction of the 1998 Regulations to the termination of the applicant’s employment on 31 October 2002. There was a continuous series of deductions from wages (holiday pay) throughout that period ending with a final payment of wages for the month of October 2002 on 20 November and 20 December 2002.”

256. The EAT in Canada Life nowhere alluded to an argument that a three month gap between two wrongful calculations of holiday pay must, of necessity, break that series of unlawful deductions. In that particular case it had been clear that there had been no such applications for holiday pay and therefore no such wrongful calculations throughout that period from 1998 on to the ending of the applicant’s employment. If Langstaff J’s conclusion in Bear Scotland was correct, that, to the tribunal’s mind, must surely mean that the claims in Canada Life should have failed. The EAT led by yet another senior and experienced Judge did not apply Langstaff J’s reasoning.

257. The EAT in Bear Scotland did not refer either to the case of List Design Group v Douglas [2003] IRLR 14.

That case concerned “rolled up holiday pay”. The Employment Tribunal had allowed the claims on the basis that there had been a “series” of deductions and that since the last such deduction had been made within time, the claims were entitled to proceed. Awards were made accordingly. The employers appealed.

258. The EAT (Mr Justice Bell) determined that there had been a series of deductions for the purposes of the domestic legislation and that the Employment Tribunal had been correct to make the relevant awards. There was no suggestion and no argument that any time limit should be transposed or imported from any other part of the legislation or inferred from the sense of that legislation.

259. In Coletta v Bath Hill Court (Bournemouth) Property Management Limited [2018] IRLR 886 the claim did not concern the calculation of holiday pay. A porter had been employed by the respondent company and claimed that he had been underpaid by reference to the national minimum wage. The relevant issue was whether Section 9 of the Limitation Act 1980 applied to fix a limitation period to the recovery of compensation or whether an alternative limitation period had been provided by the Employment Rights Act 1996. The Employment Tribunal had determined that the limitation period had been set by the Limitation Act 1980 at six years. The claimant appealed and the EAT (Judge Eady QC) allowed that appeal.

260. The EAT held that the Employment Rights Act had laid down a period of limitation for the bringing of claims and that limitation, was sufficient to displace the general provision in the Limitation Act 1980. The decision of the EAT was therefore limited to a question of interpretation regarding the Limitation Act.

261. It was therefore clear that the EAT in 2018 did not state in terms that there was any limitation period as such on the remedy rather than on the lodging of the claim. It concluded that whether or not there had been a “series” of deductions had been a question of fact. It referred to parts of Bear Scotland. However it did not seek to import a provision which, importantly, would have allowed for an automatic cut off point, if there had been a three month break in any such series.

262. The EAT was alive to the difficulties faced by many employers following Bear Scotland. It stated;

“More generally, I do not consider there is an easy answer as to what public policy would dictate in this context. I appreciate the real world difficulties for many employers facing unauthorised deductions claims going back many years; the failure to pay claims “properly payable” may not have been intentional; employers will no doubt point to the development of case law in relation to the national minimum wage and under the Working Time Regulations. That said, Part II ERA is intended to provide an important statutory protection for workers; in this context, they are simply claiming those sums that were properly due to them. They were, moreover required to bring such claims within three months of the deduction in issue – or the last in a series of deductions – by virtue of Subsections 2, 3(2) and (3).”

If the EAT in Coletta had felt that the remedy had been significantly restricted by an implied provision that a series would be automatically broken by any gap of three months, the EAT would have said so at this point. It would have been relevant to the “real world” difficulties faced by employers in this context. The fact that the EAT did not make this point suggests that it did not accept that Langstaff J’s ruling was correct.

263. Reference has been made in argument in the present cases to the terms of the Deduction from Wages (Limitation) Regulations 2014 – 2014 No 3322. Those were Regulations which apply only in Great Britain and do not apply in Northern Ireland. Their purpose was simply and expressly to limit the scope for backdating claims, under both the Employment Rights Act and the Working Time Regulations, in Great Britain. The Regulations expressly amend the Employment Rights Act 1996 to insert a limitation on how far back in time an Employment Tribunal is able to consider when determining whether a worker has suffered unauthorised deductions from their wages. That limitation is for a period of two years before the date of claim. In the impact assessment which underpinned the relevant Regulations, it states;

“The Employment Rights Act does not currently set a limit on the period for backdated claims from employees for unlawful deductions from wages by employers. The potential period to allow backdated claims is therefore uncertain and would depend on Employment Tribunal rulings leading to a range of possible outcomes depending on the nature of the case. This uncertainty is detrimental to businesses making it difficult to estimate, plan for and manage the potential costs they face. Similarly, it creates uncertainty for the individual. The problem has been exacerbated by the recent Employment Appeal Tribunal judgment (Fulton v Bear Scotland [2014] UKEATS/0047/13) and the Working Time Directive, which is opening the potential for significant claims to UK businesses who were at the time complying in good faith with the law prior to the tribunal judgment.”

The decision made as a result of that impact assessment was to limit all such claims to a period of two years before the date of claim. That undoubtedly minimised the difficulties faced by employers in Great Britain. It certainly also removed “uncertainty” for the individual worker. It is however unclear how those Regulations could properly be regarded as ensuring compliance with the fundamental rights granted to those workers under the Working Time Directive. However, thankfully, the legality of that legislative provision in terms of EU law is not a matter for this tribunal since the 2014 Regulations do not apply in this jurisdiction. There has been, as far as the tribunal is aware, no attempt to introduce parallel Regulations within Northern Ireland. Certainly the tribunal has not been referred to any such parallel Regulations.

In any event, the GB Regulations and the impact assessment do not suggest that “series” should be given the restricted meaning contended for by Langstaff J.

264. In conclusion in relation to the question concerning Langstaff J’s interpretation of “series”, the unanimous decision of the tribunal is that his decision is wrong and should not be followed in this jurisdiction. The word “series” should be given its ordinary meaning and should be judged on the circumstances of each individual case. The same approach should of course apply where the word “series” is read into the Working Time Regulations.

265. Turning to the sub-questions (b) and (c) in relation to the definition of “series” these questions concern the extent, apart from Langstaff J’s ruling in relation to any three month gap, to which gaps can break the series for the purposes of Articles 45 and 55 of the 1996 Order.

266. In Ekwelem v Excel Passenger Service Limited UKEAT/0438/12 one issue which was before the EAT was whether or not a series of deductions would be broken if only some of the deductions in an alleged series of unlawful deductions were lawful and some were unlawful. The EAT stated;

“31 - A series does not cease to be a series because on analysis and on judgment it is concluded that some part of it is not lawful. This was asserted to be a continuing act, and in my judgment, it was a continuing act. The fact that the claimant cannot succeed on some part of it does not mean that the case was time barred.”

267. The decision emphasises the point that the word “series” has an ordinary meaning. As Langstaff J pointed out in Bear Scotland, if the alleged deductions in that series are sufficiently similar and if they occur with sufficient regularity, that constitutes a “series” in ordinary language. In the present claims, the type of deductions was standard throughout. It did not matter, for the purposes of the definition of a “series”, whether the actual day of annual leave in question was, (if it could be defined as such at all) a day of annual leave guaranteed by the Working Time Directive, a day of annual leave guaranteed by the Working Time Regulations or a day of annual leave guaranteed by the conditions of service. If the days under those three categories of annual leave are in fact distinguishable, it does not, in the tribunal’s opinion, matter whether there are intervening calculations of holiday pay to which, for the purposes of the present claims at least, the claimants do not object. Looked at overall, and as a matter of ordinary language there has been a series of unlawful deductions. Those deductions were made on the same incorrect interpretation of the law and were made with absolute consistency, occurring on each and every occasion on which holiday pay was calculated in the periods up to the dates of claim and indeed up to the present time.

268. Therefore the tribunal concludes that if certain holiday pay calculations, (if it is correct that holiday pay can be accurately split between the three categories of holiday pay) are correctly calculated or, at least, calculated in a way to which the claimants for the purposes of the present actions do not object, that does not break what is an obvious and clear “series” of unlawful deductions for the purposes of Articles 45 and 55 of the 1996 Order, and indeed for the purposes of the Working Time Regulations if additional words are read into those Regulations.

269. Argument in the present case further focussed on various obvious examples of instances where the pattern of being able to apply for holiday pay was broken. Those included absences upon the basis of maternity, maternity related illness, disability related illness, ordinary illness, illness related to injuries on duty and in one instance in relation to a reserve forces call-up. In each of those instances and indeed in several other instances which will have of necessity occurred in the remaining almost 4,000 claims, the individual claimants will have been absent from work and deprived of the possibility of seeking annual leave and therefore removed from the possibility of a wrongful calculation of holiday pay.

270. The answer to this question appears to lie in the obligation, as it seems to this tribunal, to apply the ordinary meaning of the word “series” as it is used in the legislation. That ordinary meaning has to be tempered by the ordinarily understood working of an employment contract. It must be accepted that there will be gaps in any employee’s or worker’s attendance at a place of work. Such gaps can be in relation to any of the particular instances set out above or can be in relation to personal choice. However none of that, in the tribunal’s view, can amount to an automatic break in the ordinary meaning of the word “series”. The definition of the ordinary word “series” must be considered in the light of the circumstances of each individual claim.

271. Therefore the decision of the tribunal is

(v) (a) No.

(b) No.

Sixth Legal Issue

(vi) “Should average overtime or allowances to be calculated in relation to holiday pay be calculated by reference to 365 days, a fixed period of 260 working days, or by reference to actual days worked to work out the per day average?

272. The respondent argues that the correct divisor is 365 days. The claimants argue that the correct divisor is the number of working days and for the purposes of argument the figure of 260 per year has been used. As an alternative the claimants argue that the better solution would be to use the actual number of working days for the relevant officer over the preceding year and to use that figure.

273. This raises a separate issue from that related to the fixing of an appropriate reference period. In respect of that an entirely separate argument, the claimants argue for a 12 month period and the respondents argue for a 12 week period.

274. Looking at the current argument in relation to the choice between 365 days and 260 days (or the actual days) as a divisor, this relates to the allocation of “normal pay” to the days taken as annual leave. The claimants argue that if an officer takes a week’s annual leave he is simply be accorded five days annual leave. The claimants argue;

“In fact, of course, if one takes a week’s holiday one will have seven days off. But the Chief Constable is not attempting to find the average overtime for a calendar week but for the working week. He is not going to pay you holiday pay for all seven days. Thus the only days relevant are working days.”

275. That argument appears to the tribunal to be incorrect. If a police officer claimant or a civilian employee claimant is taking a week’s annual leave, he is taking a week’s annual leave. He is on annual leave for the seven days. He is on annual leave during periods which would ordinarily fall within a rest period or at a weekend if that is that claimant’s regular working pattern. He cannot be allocated overtime or directed to come in to work on any of the days in that week (unless annual leave is cancelled) even on the weekends or even on the days which would otherwise be allocated as rest days.

276. That is where the claimants’ argument fails. Annual leave is not a payment simply for days on which the individual will otherwise have worked. It is an annual payment of salary (recalculated to include normal overtime and allowances etc), and on a daily basis, to conclude weekends, public holidays, bank holidays and annual leave.

277. Therefore it would appear to the tribunal that the correct solution in this respect is the figure of 365. Ie calendar days.

Seventh Legal Issue

(vii) “In assessing the average overtime in respect of annual leave relevant to the present claims (the 20 days or four weeks’ annual leave provided by the Working Time Directive), is it the case that;

(a) the first 20 days taken in any annual leave period must be the 20 days provided by the Directive? – in other words is there a strict order of succession in relation to the three different types of annual leave; namely, leave provided by the Directive, leave provided by the Regulations and leave provided under the conditions of service?

(b) The 20 days provided by the Directive are distributed proportionately throughout the annual leave year and therefore each annual leave day is to be regarded as comprising 20/30 Working Time Directive 8/30 Working Time Regulations and 2/30 conditions of service?

(c) The 20 days provided by the Directive, the eight days provided by the Regulations and the two days provided under the conditions of service are indistinguishable from each other and therefore form part of a composite whole of 30 days annual leave? If so, how does that affect the current claims and to what extent is each annual leave day to be regarded as relevant to the current claims which relate solely to entitlement under the Directive?”

278. Much of the importance of this argument depends upon the respondents’ argument that days of compliant annual leave, or at least days of annual leave which are not challenged for the purposes of these claims, must of necessity break a “series” for the purposes of the 1996 Order. The tribunal has determined that a “series” for the purposes of the 1996 Order, as for the purposes of the Working Time Regulations if additional words are read in, is not broken by any such compliant or non-challenged holiday pay calculation. The calculations in relation to the 20 days provided by the Directive are regular and foreseeable. On any normal interpretation of the word “series”, they form part of a series. To that extent, this argument, subject to any decision at appellate level, in relation to the former argument, may be otiose. However the parties wish a conclusion in relation to this matter and it may well prove important in the context of the appellate decisions.

279. It is clear that the 20 days annual leave provided by the Directive is the minimum period mandated by EU law. However, as a matter of law, it is no less an entitlement of the individual worker and no less an obligation on the individual employer, than the eight days provided under the Working Time Regulations or the two days (or in certain cases more) provided under the conditions of service afforded to the individual worker.

280. To the tribunal, it would make no sense to treat any part of the annual leave entitlement, which comprises those three categories, differently from any other part of the annual leave entitlement or to require a strict succession of types of leave. As far as the individual employer and the individual worker is concerned, the split between these three categories has no real importance at all. Both the individual employer and the individual worker look at annual leave entitlement as a composite whole. No police officer claimant, or any civilian employee, has ever said “I have two more Working Time Directive days left before I move on to Working Time Regulations days.” Neither has the Chief Constable. In the present claims, the composite leave entitlement comprises 20 days provided by the Directive, eight days provided by the Regulations and two (or more) days provided under the conditions of service. If any strict succession had been intended or even contemplated, that would have had to be laid down in legislation and would have had to deal with issues such as the carryover of annual leave.

281. The respondents argues that in Bear Scotland, Langstaff J stated;

“82 - Regulation 13A is described in the Regulations as “additional leave”. That suggests that the dates of it should be the last to be agreed during the course of a leave year”.

With respect, the tribunal disagrees (again) with Langstaff J’s conclusion. The description of the eight days or 1.6 weeks provided by the Regulations as “additional” says nothing about a strict succession of types of annual leave. If it were to do so, it would have said that in terms and it would have dealt also with the issues of succession in relation to leave provided under the conditions of service or leave provided as a carryover of other types of annual leave. It did not do so. It seems to the present tribunal that reading into the words “additional leave”, the proposition that there must be a strict succession of annual leave, is a step too far.

282. Looking in particular at the issue of carried over annual leave, the respondents’ argument cannot be sustained. If the respondent were correct to argue that the first 20 days annual leave taken in any annual leave period must be the 20 days provided by the Directive, then it would follow of necessity that any period of say five days annual leave carried over from one year to the next would be a mixture of leave provided under the Regulations and leave provided under the conditions of service. Again if the respondents were correct in their argument, in the following leave year, the 20 days provided under the Working Time Directive would have to be taken first, ahead of any carried over leave under the Regulations or under the conditions of service and ahead of any new leave provided in respect of that new annual leave year under the Regulations and under the conditions of service. It would be difficult to understand how that would work in practice. Once the 20 days provided under the Directive were used up, what would follow next and in what order? Would the new eight days provided under the Regulations and the new two days provided under the conditions of service have to be used up first before the carryover mixture of days provided under the Regulations and days provided under the conditions of service would be used up? If that were to be correct, what would be the basis of such a proposition? If it were to be correct, would the carried over days under the Regulations have to be used first before the carried over days under the conditions of service? At that point, reality departs the scene and whole thing becomes a nonsense.

283. The respondents’ argument is inherently illogical. The only sustainable interpretation is that days of annual leave awarded on whatever basis form part of a composite whole. Any individual leave days taken from that pot are not possible of being allocated between one category or another. Each day’s annual leave therefore must be treated as a fraction of the composite whole.

284. The tribunal’s conclusion in respect of the questions set out above is;

(i) no.

(ii) Yes.

(iii) Yes.

285. The claims will be listed for a Case Management Discussion to determine the way forward. This of course will almost certainly not be necessary in the short term given the inevitability of appeals.

Vice President:

Date and place of hearing: 26 and 27 September, 1 and 2 October 2018, Belfast.

Date decision recorded in register and issued to parties:

teachers in that case were required to do both directed and undirected work (the latter involving duties such as marking and lesson preparation) and, as professionals, would have to perform at least some of the undirected work during evenings, weekends or holiday periods as there was no time to do it all within the core 195 days. As such, the contracts could not be said to be severable and so the Apportionment Act applied. As a result, any deduction for a day's strike pay should be at a rate of 1/365 of annual salary. This is clearly distinguishable from the Claimants in these actions who carry out their duties whilst ‘on duty’ (whenever that may be) rather than when off duty.

128. In any event, in Hartley the Supreme Court rejected the divisor of 260 days which was based upon weekday working as it could not be assumed the teachers only worked on those days. Here, by contrast, the Claimants are obviously not suggesting a divisor based upon the number of weekdays in a calendar year (260) – rather, they say the appropriate divisor (for the purposes of this rather unusual calculation) is 240, being the number of working days upon which the Claimants were able to earn remuneration for overtime which should then be taken into account in the reg. 13 leave payments.

J. CONCLUSIONS

129. In conclusion, the Claimants say:

(a) The Respondent’s failure to include any payment in respect of overtime (or allowances as to the civilians) within the annual leave payments constituted breach of regulations 16 and 30 of the WTRs;

(b) Such failure was not required or authorised by the PSNI Regulations;

(c) Each officer claimant is a worker for the purposes of article 45 ERO such that those failures constituted unlawful deductions from wages contrary to article 45 ERO;

(d) Each Claimant can recover for each historic failure as to holiday pay as a series of deductions under the ERO and/or under reg 30 WTRs as it must be interpreted in light of Sash Windows;

(e) During an annual leave year, a claimant utilises a proportion of his reg. 13 leave on each occasion upon which he/she avails of annual leave;

(f) The loss should be calculated based on a divisor of 240, being the number of working days in a leave year upon which the Claimant had the opportunity to work overtime and be paid allowances as part of his/her normal remuneration.

David McMillen QC

Peter Hopkins BL

16.9.18

Case No. 112/16 and others

IN THE OFFICE OF THE INDUSTRIAL TRIBUNALS

AND THE FAIR EMPLOYMENT TRIBUNAL

BETWEEN:

AGNEW & OTHERS

SMYTH & OTHERS

CLAIMANTS

-AND-

(1) CHIEF CONSTABLE OF THE POLICE SERVICE OF NORTHERN IRELAND

(2) NORTHERN IRELAND POLICING BOARD

RESPONDENTS

_______________________________________________

RESPONDENT’S OPENING SUBMISSIONS

HEARING COMMENCING 24 SEPTEMBER 2018

_______________________________________________

References in square brackets [--] are to the core hearing bundle by volume and page

SUMMARY

1. There are two groups of Claimants: police officers and staff. The Claimants in both groups have served generic claim forms, alleging that the Respondent failed to pay annual leave in accordance with the Working Time Directive (“WTD”)[1] and/or regulation 13 of the Working Time Regulations 1998 (“WTR 1998”), amounting to an unlawful deduction of wages pursuant to the Employment Rights (Northern Ireland) Order 1996 (“ERO”) in each case.

2. The particular failure alleged is that annual leave payments did not reflect “normal pay” taking into account, in respect of police officers, regular overtime and, in respect of staff, regular overtime and the following allowances:

a. On call allowances for public holidays, weekday and weekend at high and low rates;

b. Premium payments for Saturday and Sunday;

c. Meal overtime allowance;

d. Back payments which should have been part of basic pay [1/22], which the Claimants should particularise.

3. The Respondent submits that it paid annual leave in accordance with the WTR 1998 and the Police Service of Northern Ireland Regulations 2005, which may have led to error in light of the WTD case law as it has evolved. Police officers and staff should be paid their normal pay while on annual leave, in respect of the WTD entitlement to four weeks annual leave. What is included in normal pay, which should be maintained during annual leave, requires specific analysis.

4. The Respondent submits that the police officer Claimants cannot maintain their claims for unlawful deductions under the ERO. The Tribunal has no jurisdiction over those claims, because police officers are public officers and not employees or workers to whom the ERO applies. Police officers may, however, claim under the WTD and WTR, which expressly apply to police and provide for remedies.

5. Limitation periods are very significant in this case. The Claimants claim for payment of unlawful deductions dating back to the commencement of their service, or 1998, whichever is earlier. The Respondent’s case is that the limitation period is three months (specific provisions extracted below). The approach to extension of time limits differs between the ERO and WTR.

6. To date, some 3,380 police officers and 364 staff have filed claims. The Tribunal is asked to decide the legal and factual issues in the agreed lists of issues, based on the

evidence filed for this hearing. That evidence includes 14 lead cases (12 police officers, 2 staff) selected by the Claimants, and 8 further Claimants (6 police officers, 2 staff) adduced by the Respondent. The Claimants have accepted that judgment on the legal issues in the lead claims will be dispositive of all claims filed against the Respondent in this litigation.[2] After receiving judgment, the parties will attempt to agree the compensation, if any, to be paid to the thousands of Claimants standing behind the lead claims, failing which a further hearing or hearings may be required.

7. The Claimants have not, to date, advanced a single worked example of the “normal pay” for which they contend and the difference between it and the annual leave payments in fact paid, nor specified the value of any particular lead claim.

8. Witness statements were served by the Claimants on 24 August 2018 and following. They are pro-forma, almost entirely identical to one another. The Respondent has since filed evidence putting the Claimants’ evidence in context and allowing for consideration of further claims: see the supplementary statement of Mr King, referred to below. While acknowledging that the Tribunal must decide cases on the evidence filed for this hearing, it is in everyone’s interests that the judgment is dispositive of as many claims as possible.

9. The Tribunal will readily appreciate that in a case involving up to 4,000 Claimants, the difference between the parties’ cases on jurisdiction and time limits is very significant. If the Claimants are entitled to maintain claims dating back to commencement of service or 1998, their combined value is likely to be approximately £30 million. Whereas, if the claims are limited to three months, their combined value is perhaps 1% of that figure. This has enormous budgetary implications for the Respondent. Processing claims purporting to span 20 years is also complex and requires significant administrative resources.

SUGGESTED READING

10. The Respondent respectfully suggests that the Tribunal read the following documents, by way of introduction to the claims:

a. The parties’ skeleton arguments, exchanged on 19 September 2018;

b. Sample ET1 claim forms and re-issued claim forms, e.g. –

i. Police Constable Alexander Agnew;

· Original claim (112/16IT) issued on 14 December 2015 [1/1];

· Re-issued claim (1821/17IT) issued on 10 March 2017 [1/13a];

ii. Mr John Kevin Edgar, civilian staff;

· Original claim (2494/16IT) issued on 5 August 2016 [1/63];

· Re-issued claim (5811/17IT) issued on 17 August 2017 [1/73a];

c. ET3 amended responses, in respect of –

i. Police officer claims, sent to the Tribunal on 10 November 2017 [1/402];

ii. Staff claims, sent to the Tribunal on 10 November 2017 [1/412];

d. Agreed list of legal and factual issues for police officer Claimants, sent to the Tribunal on 3 August 2017 [1/497];

e. Agreed list of legal and factual issues for staff Claimants, 26 October 2017 [1/501];

f. The Respondent’s notice for additional information sent to the Claimants represented by MTB solicitors on 28 February 2018 [1/442];

g. The Respondent’s notice for additional information sent to the Claimants represented by Edwards & Co solicitors on 28 February 2018 [1/496(a)];

h. Replies to the Respondent’s notice for additional information, e.g. –

i. That served by MTB on behalf of Mr Agnew, 8 May 2018 [1/22];

ii. Police officer Claimants represented by Edwards & Co, 29 May 2018 [1/357];

i. The Respondent’s replies dated 15 June 2018 to the Claimants’ notices for additional information and to admit facts [1/493 and 1/496(q)];

j. The Respondent’s letter to the Claimants’ representatives dated 8 August 2018, in relation to future payment of annual leave with effect from 1 April 2018 [1/531];

k. The bundle of witness statements.

RESPONDENT TO STAFF CLAIMS

11. The employer of staff Claimants, employed to assist the police, is the Northern Ireland Policing Board (“NIPB”), not the Chief Constable: section 4, Police (Northern Ireland) Act 2000. Section 4(5) provides that the following functions of the Board shall be exercised, on behalf of and in the name of NIPB, by the Chief Constable:

a. The power to direct and control senior employees of the Board and all other powers and duties of the Board as employer of such employees, other than the power to appoint and dismiss;

b. The power to appoint and dismiss other employees, the power to direct and control such employees and all other powers and duties of the Board as employer of such employees;

c. The power to direct and control persons providing assistance to the police in pursuance of arrangements under subsection (4).

12. Accordingly, the parties agreed that the NIPB should be joined as a respondent to staff claims. The singular ‘Respondent’ is adopted in this skeleton argument for convenience.

POLICE OFFICER AND STAFF PAY AND CONDITIONS

13. The Respondent’s witnesses are:

a. Ms Ramsay, grade 7 public servant, Strategic Lead for Human Resources. Her evidence explains the core features of pay and conditions for police officers and staff, including the key standards and policy documents;

b. Mr King, grade 7 public servant, chartered accountant, head of the Respondent’s Financial Reporting and Accountancy Services –

i. His first statement sets out core features of the Respondent’s pay methodology and systems;

ii. His second (supplementary) statement analyses the representativeness of the 14 lead cases advanced by the Claimants and provides details of eight further Claimants in a variety of roles, with different work patterns;

c. Chief Inspector McCauley, Operations Chief Inspector responsible for the Operational Planning Department for Belfast. His statement outlines basic features of the Respondent’s management of rosters, overtime and annual leave.

14. The Respondent remunerates police officers in accordance with the Police Service of Northern Ireland Regulations 2005 and the determinations made thereunder, relevantly regulation 23, pay; regulation 24 and determinations annex E, overtime; and regulation 32 and determinations annex M, leave. Police staff are remunerated pursuant to contracts of employment.

15. The Respondent has admitted in response to the present claims that police officers may be required to work overtime (whereas staff overtime was and is voluntary). The Respondent did not pay overtime to the police officer Claimants while they were on annual leave, in respect of overtime not in fact performed by them; nor did the Respondent pay overtime or allowances to the staff Claimants outwith their contracts.

WORKING TIME DIRECTIVE

16. The purpose of the WTD is to lay down minimum safety and health requirements for the organisation of working time, article 1: “This Directive lays down minimum safety and health requirements for the organisation of working time”, pursuant to article 153 of the Treaty on the Functioning of the European Union (ex Article 137 Treaty

establishing the European Community). The key provision for present purposes is article 7, the right to four weeks paid annual leave:

Annual leave

1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated. [emphasis added]

17. The WTD was implemented in Northern Ireland by the Working Time Regulations (Northern Ireland) 1998, in force from 23 November 1998 to 28 February 2016, revoked by the Working Time Regulations (Northern Ireland) 2016. The 2016 regulations were intended to consolidate and replace the 1998 regulations as amended, but not change the substance of the law.[3] Most of the lead claims were issued after the revocation of the 1998 regulations. The 2016 provisions are referred to below unless otherwise specified.

18. The WTD in any event has direct effect against emanations of the state: Dominguez v Centre Informatique du Centre Ouest Atlantique (C-282/10) [2012] 2 C.M.L.R. 14, including the Respondent.

19. Paid annual leave is a fundamental social right in EU law, which should not be interpreted restrictively: R. (BECTU) v Secretary of State for Trade and Industry (C-173/99) [2001] 1 WLR 2313, para. 43.

20. Article 7 does not, on its face, specify an amount or formula for annual leave pay, which appeared to be left to national law and practice. However, the case law of the Court of Justice of the EU (“CJEU”) considered below, requires that workers are paid their “normal” pay on annual leave. In Lock v British Gas Trading Ltd [2017] 1 CMLR 25, Sir Colin Rimer noted in the Court of Appeal (England and Wales), following a review of the CJEU case law:

57 … art.7 in fact worked a secret magic that the Directive’s language does not betray – that Member States do not have a free hand as to the basis of the calculation of holiday pay but must ensure that it at least matches a worker’s normal remuneration.

21. The WTR applies to staff Claimants by virtue of the definition of worker and employer in regulation 2. The WTR also applies to police officers by specific deeming provision, regulation 50, not by analogy between police officers and employees:

50. Police service

[ex regulation 38 in the WTR 1998]

(1) Subject to paragraph (2), for the purposes of these Regulations, the holding, otherwise than under a contract of employment, of the office of constable shall be treated as employment, under a worker’s contract, by the relevant officer.

(2) For the purposes of these Regulations, any constable who has been seconded to the National Crime Agency to serve as a member of its staff shall be treated as employed by the National Crime Agency.

(3) Any matter relating to the employment of a worker which may be provided for the purposes of these Regulations in a workforce agreement may be provided for the same purposes in relation to the service of a person holding the office of constable by an agreement between the relevant officer and the central committee.

(4) In this regulation—

“the central committee” means the committee constituted in accordance with regulation 14 of the Police Association for Northern Ireland Regulations 1991; and

“the relevant officer” means—

(a) in relation to a member of the Police Service of Northern Ireland or the Police Service of Northern Ireland Reserve, the chief constable; and

(b) in relation to any other person holding the office of constable, the person who has the direction and control of the body of constables in question. [emphasis added]

22. The entitlement to four weeks annual leave in the WTR is found in regulation 15:

15. Entitlement to annual leave

[ex regulation 13 in the WTR 1998]

(1) Subject to paragraph (4), a worker is entitled to four weeks’ annual leave in each leave year.

(2) A worker’s leave year, for the purposes of this regulation, begins—

(a) on such date during the calendar year[4] as may be provided for in a relevant agreement; or

(b) where there are no provisions of a relevant agreement which apply, on the date on which the worker’s employment begins and each subsequent anniversary of that date.

(3) Paragraph (2) does not apply to a worker to whom Schedule 2 applies (workers employed in agriculture) except where, in the case of a worker partly employed in agriculture, a relevant agreement so provides.

(4) Where the date on which a worker’s employment begins is later than the date on which (by virtue of a relevant agreement) the worker’s first leave year begins, the leave to which the worker is entitled in that leave year is a proportion of the period applicable under paragraph (1) equal to the proportion of that leave year remaining on the date on which the worker’s employment begins.

(5) Leave to which a worker is entitled under this regulation may be taken in instalments, but—

(a) it may only be taken in the leave year in respect of which it is due,[5] and

(b) it may not be replaced by a payment in lieu except where the worker’s employment is terminated. [emphasis added]

23. Regulation 16 WTR sets out the entitlement to an additional 1.6 weeks annual leave, granted by virtue of domestic rather than EU law:

16. Entitlement to additional annual leave

[ex regulation 13A in the WTR 1998]

(1) Subject to regulation 33 and paragraphs (2) and (4), a worker is entitled to a period of 1.6 weeks additional leave in each leave year.

(2) The aggregate entitlement provided for in paragraph (1) and regulation 15(1) is subject to a maximum of 28 days.

(3) A worker’s leave year begins for the purposes of this regulation on the same date as the worker’s leave year begins for the purposes of regulation 15.

(4) Where the date on which a worker’s employment begins is later than the date on which the worker’s first leave year begins, the additional leave to which the worker is entitled in that leave year is a proportion of the period applicable under paragraph (1) equal to the proportion of that leave year remaining on the date on which the worker’s employment begins.

(5) Leave to which a worker is entitled under this regulation may be taken in instalments, but it may not be replaced by a payment in lieu except where the worker’s employment is terminated.

(6) A relevant agreement may provide for any leave to which a worker is entitled under this regulation to be carried forward into the leave year immediately following the leave year in respect of which it is due. [emphasis added]

24. Regulation 20 WTR attempted to govern payment of annual leave, at the rate of one week’s pay for each week of leave:

20. Payment in respect of periods of leave

[ex regulation 16 in the WTR 1998]

(1) A worker is entitled to be paid in respect of any period of annual leave to which the worker is entitled under regulation 15 and regulation 16, at the rate of a week’s pay in respect of each week of leave.

(2) Articles 17 to 20 of the 1996 Order [the ERO] shall apply for the purpose of determining the amount of a week’s pay for the purposes of this regulation, subject to the modifications set out in paragraph (3).

(3) The provisions referred to in paragraph (2) shall apply—

(a) as if references to the employee were references to the worker;

(b) as if references to the employee’s contract of employment were references to the worker’s contract;

(d) as if the references to Articles 23 and 24 did not apply.

(4) A right to payment under paragraph (1) does not affect any right of a worker to remuneration under the worker’s contract (“contractual remuneration”) (and paragraph (1) does not confer a right under that contract).

(5) Any contractual remuneration paid to a worker in respect of a period of leave goes towards discharging any liability of the employer to make payments under this regulation in respect of that period; and, conversely, any payment of remuneration under this regulation in respect of a period goes towards discharging any liability of the employer to pay contractual remuneration in respect of that period. [emphasis added]

25. Note that regulation 20(2) WTR refers to articles 17 to 20 ERO to determine the value of a week’s pay for each week of leave which, by way of summary, required a police officer or staff member with normal hours to be paid their basic pay.

26. In Bamsey v Albon Engineering & Manufacturing Plc [2004] 2 CMLR 59 the Court of Appeal (England and Wales) held, in relation to corresponding provisions in that jurisdiction, that there was “no basis for reading Art.7 of the Directive as requiring a broad equivalence of pay for work done, namely overtime, which the employer was not bound to provide under the contract of employment, with payment on annual leave for overtime work not done at all”: para. 40.

27. That is no longer considered to be good law, see e.g. Bear Scotland Ltd v Fulton [2015] 1 CMLR 40 per Langstaff J at para. 64. Rather, the Tribunal must look to the case law of the CJEU in respect of the four weeks leave mandated by article 7 WTD and regulation 15 WTR, and not simply implement regulation 20(2) WTR which may lead to error.

28. According to the CJEU, workers must be paid their normal pay while on annual leave. The concept of normal pay refers not to baseline salary, but to the pay normally received by the worker, including supplementary payments that are a regular and settled feature of remuneration. The phrase in regulation 20(1) WTR “a week’s pay” must be interpreted accordingly.

29. In Robinson-Steele v RD Retail Services Ltd (C-131/04) [2006] 2 CMLR 34 the CJEU declared that it was not permissible to pay employees annual leave by incorporating a loading into rates throughout the year for work performed (‘rolled-up’ pay). Article 7 WTD requires annual leave to be paid separately and contemporaneously with leave:

48 In that regard, it must be recalled that the entitlement of every worker to paid annual leave must be regarded as a particularly important principle of Community social law from which there can be no derogations and whose implementation by the competent national authorities must be confined within the limits expressly laid down by the directive itself (see BECTU (C-173/99): [2001] ECR I-4881; [2001] 3 CMLR 7 at [43]).

49 The holiday pay required by Art.7(1) of the directive is intended to enable the worker actually to take the leave to which he is entitled.

50 The term “paid annual leave” in that provision means that, for the duration of annual leave within the meaning of the directive, remuneration must be maintained. In other words, workers must receive their normal remuneration for that period of rest.

51 In those circumstances, it must be held that an agreement under which the amount payable to the worker, as both remuneration for work done and part payment for minimum annual leave, would be identical to the amount payable, prior to the entry into force of that agreement, as remuneration solely for work done, effectively negates, by means of a reduction in the amount of that remuneration, the worker’s entitlement to paid annual leave under Art.7 of the directive. Such a result would run counter to what is required by Art.18(3) of the directive.

52 Consequently, the answer to the second question referred in Case C-257/04 must be that Art.7(1) of the directive precludes part of the remuneration payable to a worker for work done from being attributed to payment for annual leave without the worker receiving, in that respect, a payment additional to that for work done. There can be no derogation from that entitlement by contractual arrangement. [emphasis added]

30. The leading case is Williams v British Airways Plc (C-155/10) [2012] 1 CMLR 23 and [2013] 1 CMLR 31, judgments of the CJEU and Supreme Court, respectively, in relation to an airline pilot whose income consisted of basic salary and supplementary payments for time spent flying and time away from base.[6]

31. The CJEU held it was not sufficient for annual leave payments to reflect only basic salary. While on annual leave, the pilot was to receive his normal remuneration, to

put him in a comparable position to work time. If necessary, this was to be determined on the basis of an average over a representative reference period. Following a discussion of the fundamental nature of the right to paid annual leave, the CJEU held:

21 As the A.G. states in point AG90 of her Opinion, it follows from the foregoing that remuneration paid in respect of annual leave must, in principle, be determined in such a way as to correspond to the normal remuneration received by the worker. It also follows that an allowance, the amount of which is just sufficient to ensure that there is no serious risk that the worker will not take his leave, will not satisfy the requirements of EU law.

22 However, where the remuneration received by the worker is composed of several components, the determination of that normal remuneration and, consequently, of the amount to which that worker is entitled during his annual leave requires a specific analysis. Such is the case with regard to the remuneration of an airline pilot as a member of the flight crew of an airline, that remuneration being composed of a fixed annual sum and of variable supplementary payments which are linked to the time spent flying and to the time spent away from base.

23 In that regard, although the structure of the ordinary remuneration of a worker is determined, as such, by the provisions and practice governed by the law of the Member States, that structure cannot affect the worker’s right, referred to in [19] of the present judgment, to enjoy, during his period of rest and relaxation, economic conditions which are comparable to those relating to the exercise of his employment.

24 Accordingly, any inconvenient aspect which is linked intrinsically to the performance of the tasks which the worker is required to carry out under his contract of employment and in respect of which a monetary amount is provided which is included in the calculation of the worker’s total remuneration, such as, in the case of airline pilots, the time spent flying, must necessarily be taken into account for the purposes of the amount to which the worker is entitled during his annual leave.

25 By contrast, the components of the worker’s total remuneration which are intended exclusively to cover occasional or ancillary costs arising at the time of performance of the tasks which the worker is required to carry out under his contract of employment, such as costs connected with the time that pilots have to spend away from base, need not be taken into account in the calculation of the payment to be made during annual leave.

26 In that regard, it is for the national court to assess the intrinsic link between the various components which make up the total remuneration of the worker and the performance of the tasks which he is required to carry out under his contract of employment. That assessment must be carried out on the basis of an average over a reference period which is judged to be representative and in the light of the principle established by the case law cited above, according to which Directive 2003/88 treats entitlement to annual leave and to a payment on that account as being two aspects of a single right … [emphasis added]

32. The CJEU concluded:

31 In the light of all the foregoing, the answer to the questions referred is that art.7 of Directive 2003/88 and cl.3 of the European Agreement must be interpreted as meaning that an airline pilot is entitled, during his annual leave, not only to the maintenance of his basic salary, but also, first, to all the components intrinsically linked to the performance of the tasks which he is required to carry out under his contract of employment and in respect of which a monetary amount, included in the calculation of his total remuneration, is provided and, second, to all the elements relating to his personal and professional status as an airline pilot. It is for the national court to assess whether the various components comprising that worker’s total remuneration meet those criteria. [emphasis added]

33. In Lock v British Gas Trading Ltd (C-539/12) [2014] 3 CMLR 53 the key question was whether the annual leave pay of a salesman should include an element to reflect the “results-based commission” normally earned. The CJEU held that regular commission payments did have to be maintained on annual leave. Were it otherwise, the worker might be deterred from taking leave by the prospect of financial disadvantage, which would be inconsistent with the health and safety purpose of the WTD:

20 Admittedly, the conditions laid down in art.7 of Directive 2003/88, as interpreted by the Court, appear to be observed by the national legislation and practice insofar as, during the period of his annual leave, the worker receives a total amount comparable to that earned during periods of work. The amount paid in respect of both his annual leave and the sales achieved by him during the weeks preceding the period of his annual leave enables the worker to take the leave to which he is entitled (see, to that effect, Robinson-Steele [2006] 2 CMLR 34 at [49]).

21 However, it must be noted that, notwithstanding the remuneration received by the worker during the period in which he actually takes his annual leave, he may be deterred from exercising his right to annual leave, given the financial disadvantage which, although deferred, is nonetheless genuinely suffered by him during the period following that of his annual leave.

22 As British Gas conceded at the hearing, the worker does not generate any commission during the period of his annual leave. Consequently, as is apparent from [8] above, in the period following that of his annual leave the worker is paid only reduced remuneration comprising his basic salary. That adverse financial impact may deter the worker from actually taking that leave, which, as the Advocate General stated at AG34 of his Opinion, is all the more likely in a situation such as that in the main proceedings in which commission represents on average over 60 per cent of the remuneration received by the worker.

23 Such a reduction in a worker’s remuneration in respect of his paid annual leave, liable to deter him from actually exercising his right to take that leave, is contrary to the objective pursued by art.7 of Directive 2003/88 (see, to that effect, inter alia, Williams v British Airways Plc (C-155/10) [2012] 1 CMLR 23 at [21]). In that regard, the fact that that reduction in remuneration occurs, as is the case in the main proceedings, after the period of annual leave, is irrelevant. [emphasis added]

34. It was left to the national court to determine how normal pay was to be calculated. The CJEU stated at para. 27:

Where the remuneration received by the worker is composed of several components, the determination of the normal remuneration to which the worker in question is entitled during his annual leave requires a specific analysis …

35. Lock returned to the Employment Tribunal, and then to the UKEAT and the Court of Appeal (England and Wales) on an issue of statutory interpretation: [2017] 1 CMLR 25. The question was whether the phrase “a week’s pay” could be given a conforming interpretation (Marleasing SA v La Comercial Internacional de Alimentacion SA (C-106/89) [1992] 1 CMLR 305), effectively re-writing the WTR. See the judgment of Sir Colin Rimer at paras. 103–112, to the effect that a conforming interpretation should be given, applying and elaborating on the decision of Langstaff J in Bear Scotland at para. 64 ff. cited above.

36. Lock concerned a private sector employer, whereas the WTD is directly effective against the Respondent in the present claims. It is, however, worth noting the Court of Appeal’s emphasis of the usual caution: that their decision was confined to the facts of the case. It was not appropriate to state that all types of commission or similar payments should be included in the concept of normal pay. Nor did the Court of Appeal determine an appropriate reference period: paras. 115–116.

37. Bear Scotland was a judgment of the EAT by Langstaff J, not binding in Northern Ireland, but relevant and (it is respectfully submitted) of substantial weight.

38. The question in Bear Scotland was whether remuneration in respect of construction industry employees’ “non-guaranteed overtime” (overtime which the employer was not contractually obliged to offer) should have been taken into account in calculating holiday pay. The Claimants made claims of unlawful deduction of wages under the Employment Rights Act 1996 (“ERA 1996”). The employer denied the claims, submitting that holiday pay calculated in accordance with day shift rates was sufficient. The Claimants were successful. Regular income in respect of non-guaranteed overtime had to be maintained during annual leave.

39. Langstaff J:

44 Despite the subtlety of many of the arguments, the essential points seem relatively simple to me. “Normal pay” is that which is normally received. As Advocate General Trstenjak observed in Williams, there is a temporal component to what is normal: payment has to be made for a sufficient period of time to justify that label. In cases such as the present, however, where the pattern of work is settled, I see no difficulty in identifying “normal” pay for the purposes of EU law, and accept that where there is no such “normal” remuneration an average taken over a reference period determined by the Member State is appropriate. Accordingly, the approach taken in Williams is unsurprising. The Court in Lock [2014] ICR 813 looked for a direct link between the payment claimed and the work done. In the Hertel and Amec cases, the work was required by the employer. On the evidence, the Employment Tribunal was entitled to think it was so regularly required for payments made in respect of it to be normal remuneration.

45 Insofar as the test seeks an intrinsic or direct link to tasks which a worker is required to carry out (stressing those last four words) it would be perverse to hold that the overtime in these cases was not. In my view, therefore, art.7 requires and required non-guaranteed overtime to be paid during annual leave. I see no scope for any such uncertainty as would persuade me to make a reference to the Court of Justice of the European Union. [emphasis added]

40. Langstaff J also referred (at para. 114) to para. 27 of the Advocate General’s opinion in Lock:

The existence of an intrinsic link between the various components making up the total remuneration of the worker and the performance of the tasks he is required to carry out under his contract of employment would seem, therefore, to be a decisive criterion for including those various components in the remuneration payable to the worker during his paid annual leave. The various allowances a worker may claim during his paid annual leave must therefore not only be directly linked to the performance of the tasks he is required to carry out under his contract of employment, but also have a certain degree of permanence. [emphasis added]

41. Patterson v Castlereagh BC [2015] NICA 47; [2015] I.R.L.R. 721 is a decision of the Court of Appeal in Northern Ireland in relation to an assistant plant engineer, a lead claimant in claims for unlawful deductions of wages under the ERO and/or breach of the WTR in respect of voluntary overtime.

42. The Tribunal had rejected a claim that earnings received for voluntary overtime in the course of full-time employment should be included in the calculation of annual leave payments. The claimant appealed. The respondent to the appeal conceded (para. 4) that voluntary overtime payments should be factored into the calculation of annual leave. The Court stated at para. 7:

Whilst we consider the concession by Mr Wolfe to have been well made, nonetheless it means that this court has been deprived of any full argument on the issue and our conclusions must therefore be read in this light and with that degree of caution attached to them. For that reason our analysis of the issues on this judgment are couched in relatively short form, recognising as we do that on another day fuller argument on this issue may transpire.

43. The Court noted the key provisions of the WTD, WTR and ERO, and the cases of Williams, Lock and Bear Scotland, cited above. Importantly, the Court reiterated that whether or not voluntary overtime pay should be maintained during annual leave pay is a question of fact, to be determined in each case, the key issue being whether the overtime in question was a regular and appropriately permanent feature of remuneration:

21 We are satisfied therefore in light of these authorities Mr Wolfe correctly conceded that in principle there is no reason why voluntary overtime should not be included as a part of a determination of entitlement to paid annual leave. It will be a question of fact for each Tribunal to determine whether or not that voluntary overtime was normally carried out by the worker and carried with it the appropriately permanent feature of the remuneration to trigger its inclusion in the calculation. [emphasis added]

44. The Court therefore remitted the case to the Tribunal to hear factual evidence regarding the overtime actually worked, within a suitable reference period: para. 25.

45. Another notable feature of Patterson is that the Court directed the Claimant/appellant to provide a worked example of how “a week’s pay” should be calculated: para. 8.

46. As noted above, the Court of Appeal expressly preserved for “fuller argument” the question of whether, as a matter of principle, voluntary overtime payments should be excluded from the calculation of annual leave pay under article 7 WTD. Tempting as that is, the Respondent does not contend in the present case that voluntary overtime payments should automatically be excluded, which may lead to arid argument, at some cost. The question has been considered in detail in judgments, not strictly binding, since Patterson (see further below). The Respondent accepts that overtime payments, including voluntary overtime payments, which are sufficiently regular and settled in each case so as to meet the description “normal”, should be maintained during annual leave. Subject to the following reservation: the Respondent should not be required to maintain voluntary overtime payments to officers or staff on annual leave during periods when no voluntary overtime would be performed.

47. In Dudley MBC v Willetts [2017] IRLR 870 the EAT considered whether payments relating to entirely voluntary overtime (the claimants could “drop on and off the rotas as they wished”) should be treated as forming part of normal pay for the purpose of calculating holiday pay. The respondent was a public sector employer.

48. The employer argued that “once it is accepted that only normal remuneration, rather than all remuneration counts, a test is required to identify those components of pay that count as normal remuneration and those that do not”. It was submitted that the appropriate test was as set out by the CJEU in Williams at para. 24: that there should be an “intrinsic link” between the payment and the performance of work that the Claimant is required (i.e. obliged) to carry out under the contract of employment.

Hence, voluntary overtime should not be considered “normal”: paras. 30–33. Simler P rejected that submission and held, at para. 39, in light of Williams:

… In each case the relevant element of pay must be assessed in light of the overarching principle and objective of Article 7 which is to maintain normal remuneration so that holiday pay corresponds to (and is not simply broadly comparable to) remuneration while working …

49. The test was not strictly limited to contractual duties, otherwise there was a risk that employers might seek to fragment pay into different components in order to minimise holiday pay, paras. 38–44, including, at para. 41:

If there is an intrinsic link between the payment and the performance of tasks required under the contract that is decisive of the requirement that it be included within normal remuneration. It is a decisive criterion but not the or the only decisive criterion. The absence of such an intrinsic link does not automatically exclude such a payment from counting. That is supported by the fact that payments that are personal to the individual such as those relating to seniority, length of service and professional qualifications also count for normal remuneration purposes even though they are not necessarily linked to performance of tasks the worker is required to carry out under the contract of employment or to inconvenient aspects of such tasks.

50. However, Simler P also made clear at paras. 40 and 44 that the question as to what is normal is fact specific. The key question being whether the component of payment in question is sufficiently usual or settled and regular across time:

40 Further, for a payment to count as “normal” it must have been paid over a sufficient period of time. This will be a question of fact and degree. Items which are not usually paid or are exceptional do not count for these purposes. But items that are usually paid and regular across time may do so …

… 44 It seems to me that applying the overarching principle established by the CJEU in Williams and Lock, in a case where the pattern of work, though voluntary, extends for a sufficient period of time on a regular and/or recurring basis to justify the description “normal”, the principle in Williams applies and it will be for the fact-finding tribunal to determine whether it is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration. [emphasis added]

51. The treatment by Simler P of voluntary overtime was followed in Flowers v East of England Ambulance Trust UKEAT/0235/17/JOJ (16 April 2018). See para. 31 per Soole J, overturning the judgment of the Employment Tribunal: “my conclusion is that it was wrong to hold that voluntary overtime necessarily fell outside the calculation of annual leave pay under the WTD. In consequence, the claims must be remitted for a case-by-case assessment in accordance with the considerations identified in Dudley”.

52. Finally, in relation to case law on article 7 WTD, the Respondent notes the “Interpretative Communication” on the WTD issued by the EU Commission, May 2017.[7] This document is not binding and does not purport to create new law. But the summary at page 33 may assist, footnotes omitted.

3. Payment during annual leave

The Court has underlined that ‘the Directive treats entitlement to annual leave and to a payment on that account as being two aspects of a single right’, as the aim of the payment during annual leave is ‘to enable the worker actually to take the leave to which he is entitled’ (175). As a consequence it considered that ‘the purpose of the requirement of payment for that leave is to put the worker, during such leave, in a position which is, as regards remuneration, comparable to periods of work’ (176).

Workers ‘must receive their normal remuneration for that period of rest’ (177) and ‘a reduction in a worker’s remuneration in respect of his paid annual leave, liable to deter him from actually exercising his right to take that leave, is contrary to the objective pursued by Article 7’ (178), the timing of the reduction is irrelevant (179).

The Court has held that payments for annual leave in the form of part payments staggered over the annual period of work are incompatible with the Directive. It has stressed that the payments should be made for a specific period in which the worker actually takes rest (180): the point at which the payment for annual leave is made must put the worker during that leave in a position that is comparable to periods of work as regards remuneration (181).

Where pay is made up of various components, the Court has considered that a specific analysis is needed to determine ‘the normal remuneration to which the worker in question is entitled during his annual leave’ (182). The Court has held that the components of total remuneration relating to the professional and personal status of the worker have to be paid during the paid annual leave. It gave the example of allowances relating to seniority, length of service and to professional qualification (183).

If allowances are linked intrinsically to performing tasks required by the worker’s contract of employment and are calculated as part of the worker’s total remuneration they must be taken into account in the remuneration to which the worker is entitled during annual leave (184). Similarly, commission received for performing tasks required by the contract of employment, such as a commission on sales, must be taken into account in calculating remuneration (185). It is for national courts to assess the reference period considered representative for the calculation of the average component payable for annual leave (186).

It is not, however, necessary to take into account components of remuneration intended to cover exclusively ‘occasional or ancillary costs arising at the time of performance of the tasks which the worker is required to carry out under the contract of employment’ (187).

FUTURE ANNUAL LEAVE PAY

53. The present claims relate to payments in respect of past periods of annual leave.

54. By letter dated 8 August 2018, the Respondent wrote to the Claimants’ representatives to address the position relating to future annual leave pay [1/531]. Subject to the approval of the Department of Justice and Department of Finance, and without prejudice to the Respondent’s position in the present claims regarding past annual leave payments, the Respondent stated that the methodology for payment of 20 days annual leave (viz. the core WTD/WTR entitlement to four weeks annual leave) will be changed, so that overtime and certain other payments are maintained during that leave. The new system would be backdated to 1 April 2018 and would be based on the method for paying annual leave adopted in England and Wales following the Bear Scotland litigation.

ADDITIONAL ANNUAL LEAVE

55. The present claims concern only the four weeks annual leave granted by the WTD and what is now regulation 15 WTR, not the additional 1.6 weeks leave provided by regulation 16 WTR as a matter of national law or the more generous annual leave paid by the Respondent to police officers (pursuant to the PSNI Regulations 2005 and determinations) and staff (pursuant to contract) based on length of service, up to 30 days per leave year in total.

56. Article 15 WTD states:

More favourable provisions

This Directive shall not affect Member States’ right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers.

57. As summarised in the Interpretive Communication, page 14, this means that:

… where workers benefit from additional protection under national law, it is for the Member States to decide on the conditions and that the Court’s interpretations in relation to the Directive’s provisions are not applicable to the more protective provisions granted at national level.

Where Member States make use of this option to implement or apply more protective provisions, compliance with the rules laid down by the Directive must be ascertained by reference solely to the limits fixed by it. An obligation remains on the ‘Member States to guarantee that each of the minimum requirements laid down by the Directive is observed’. [emphasis added]

58. In Bear Scotland, Langstaff J stated:

71 Employment Judge Camp in Hertel and Amec distinguished between sums paid under regulation 13 [see regulation 15 WTR 2016] and sums paid under regulation 13A [see regulation 16 WTR 2016]. The latter provision is, following Bamsey [2004] 2 CMLR 59, subject to s.234 of the 1996 Act. It follows from the decision I have reached in respect of issues 1 and 2 that the amounts due under the respective regulations differ, since those under regulation 13 must correspond to the normal remuneration received by an employee in the reference period appropriate to the leave in respect of which it is payable, whereas the latter is subject to the regime provided for by ss.220–224 and 234.

… 82 It is unnecessary therefore for me to consider whether Employment Judge Camp was in error at para.86.3, in thinking that the type of leave being taken was a matter for the employee to choose. However, in case this issue goes further, I shall deal with it. I think his reasoning (that the choice was theirs because it was “their leave”) is unsustainable. First, it might equally be said that it is the employer’s obligation to pay for it, so the choice should be its: this is equally unsatisfactory as a basis for deciding who should determine the character of leave, but demonstrates that there are two sides to the same coin. Secondly, in the absence of detailed contractual provisions the power of an employer to exercise control, which is inherent in every contract of employment, means it is entitled (within reasonable bounds, and following the procedure laid down by Regulation 15(3) of the Working Time Regulations) to direct when holiday should be taken. It therefore has the power to direct when, within a leave year, Regulation 13 holiday should be taken (albeit subject to Regulation 15). Third, Regulation 13A is described in the Regulations as “additional leave”. That suggests that the dates of it should be the last to be agreed upon during the course of a leave year.

[emphasis added]

59. In the return of Lock to the Employment Tribunal the parties agreed, rightly in the Respondent’s submission, that the CJEU ruling did not apply to additional leave. See the Court of Appeal judgment:

19 I add that it is agreed that the CJEU’s ruling in Lock [2014] 3 CMLR 53 applies only to the four weeks of annual leave provided for by regulation 13 of the WTR. It does not apply also to the extra 1.6 weeks of annual leave provided for, as a matter of UK domestic law, by regulation 13A (which does not derive from the Directive), nor does it apply to any additional contractual leave period. [emphasis added]

60. Further, in Dudley MBC v Willetts, Simler P was careful to demarcate the 4 weeks leave guaranteed by Article 7 of the WTD, from additional leave. See para. 9:

9 There is a distinction between the right to annual leave created by Regulation 13 and the right to additional leave created by Regulation 13A. The former implements a right found in the WTD whereas the latter does not and is a purely domestic measure. The significance of the distinction is that any entitlement to increased holiday pay premised on rights derived from EU law applies only to Regulation 13 leave. This appeal is concerned only with payments of holiday pay relating to Regulation 13 holiday entitlement. [emphasis added]

61. This is not a matter of semantics. It has implications for time limits and calculation of the value of the present claims. In the absence of a clear statutory or contractual provisions governing which type of annual leave is spent by police officers and staff Claimants in what order, the Respondent submits that when annual leave was taken, police officers and staff used up their four-week minimum entitlement under the WTD and regulation 15 WTR first, followed by – logically – their “additional” annual leave, followed by any further additional leave based on length of service.

62. The colour-coded tables of leave exhibited to the Claimants’ witness statements appear to lump all annual leave together, whatever the source. That approach will lead to error. Again, in the present claims, the Tribunal is concerned only with the four weeks annual leave granted by the WTD and regulation 15 WTR, the first 20 days annual leave taken in a leave year.

THE APPROPRIATE REFERENCE PERIOD

63. The Respondent acknowledges that it may be necessary to determine a representative reference period so as to determine the normal pay which must be maintained during annual leave for particular claimants. The Respondent submits that a 12-week reference period is appropriate (cf. the 12-week reference period in article 17 ERO for determining a week’s pay). A reference period of one year would be, administratively, simpler. But it would be less sensitive to variations in working patterns and pay leading into particular periods of annual leave, and therefore less accurate for determining what was normal and any compensation now due.

UNLAWFUL DEDUCTION CLAIMS: POLICE OFFICERS

64. Each of the police officer Claimants allege unlawful deduction of wages contrary to article 45 ERO. In respect of the claims first issued by police officers represented by MTB in 2015 and 2016, that is the only cause of action [1/13]. Subsequent claims issued by MTB claim compensation under the ERO, WTD and/or WTR. The claims issued by the Claimants represented by Edwards & Co did so from the outset.

65. The Respondent submits that police officer Claimants cannot claim for breach of the right not to suffer unlawful deductions in article 45 ERO because they are public officers and not employees or workers. It is not clear why they describe themselves as

employees in their ET1 claim forms, not amended or corrected in re-issued claim forms.

66. Article 45 ERO states that an “employer” shall not make unlawful deductions from wages of a “worker”:

45.— Right not to suffer unauthorised deductions

(1) An employer shall not make a deduction from wages of a worker employed by him unless—

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) In this Article “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised—

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker’s wages on that occasion.

(4) Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) For the purposes of this Article a relevant provision of a worker’s contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7) This Article does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer. [emphasis added]

67. The right is enforced by complaint to the Tribunal under article 55 ERO:

55.— Complaints to industrial tribunals

(1) A worker may present a complaint to an industrial tribunal—

(a) that his employer has made a deduction from his wages in contravention of Article 45 (including a deduction made in contravention of that Article as it applies by virtue of Article 50(2)),

(b) that his employer has received from him a payment in contravention of Article 47 (including a payment received in contravention of that Article as it applies by virtue of Article 52(1)),

(c) that his employer has recovered from his wages by means of one or more deductions falling within Article 50(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or

(d) that his employer has received from him in pursuance of one or more demands for payment made (in accordance with Article 52) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under Article 53(1).

(2) Subject to paragraph (4), an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with—

(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

(b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received.

(3) Where a complaint is brought under this Article in respect of—

(a) a series of deductions or payments, or

(b) a number of payments falling within paragraph (1)(d) and made in pursuance of demands for payment subject to the same limit under Article 53(1) but received by the employer on different dates,

the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

(4) Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable … [emphasis added]

68. The terms “employer” and “worker” are defined by article 3 ERO, which is the key provision governing its scope:

3. Employees, workers

(1) In this Order “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Order “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Order “worker” means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker’s contract shall be construed accordingly.

(4) In this Order “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

(5) In this Order “employment” —

(a) in relation to an employee, means (except for the purposes of Article 206) employment under a contract of employment, and

(b) in relation to a worker, means employment under his contract;

and “employed” shall be construed accordingly.

(6) This Article has effect subject to Articles 67K and 70B(3); and for the purposes of Part XV so far as relating to Part VA or Article 70B, “worker”, “worker’s contract” and, in relation to a worker, “employer”, “employment” and “employed” have the extended meaning given by Article 67K.

(7) This Article has effect subject to Article 107M(3) and (5). [emphasis added]

69. Police officers have not entered into a contract with the Respondent, whether express or implied, within the meaning of article 3. Police officers are under the direction and control of the Chief Constable, because of their constitutional status and the law governing the organisation and discipline of PSNI, but they do not perform personally work or services for the Chief Constable.

70. See section 32 of the Police (Northern Ireland) Act 2000 in relation to the functions and duties of constables, which are grounded in statute and not contract; section 36 in relation to the appointment of constables, and section 38 in relation to their attestation to faithfully discharge the duties of that office:

32.— General functions of the police.

(1) It shall be the general duty of police officers—

(a) to protect life and property;

(b) to preserve order;

(d) where an offence has been committed, to take measures to bring the offender to justice.

(2) A police officer shall have all the powers and privileges of a constable throughout Northern Ireland and the adjacent United Kingdom waters.

(3) In subsection (2)—

(a) the reference to the powers and privileges of a constable is a reference to all the powers and privileges for the time being exercisable by a constable whether at common law or under any statutory provision,

(b) “United Kingdom waters” means the sea and other waters within the seaward limits of the territorial sea,

and that subsection, so far as it relates to the powers under any statutory provision, makes them exercisable throughout the adjacent United Kingdom waters whether or not the statutory provision applies to those waters apart from that subsection.

36.— Appointment and promotion of other police officers in the Police Service of Northern Ireland.

(1) This section applies to the Police Service of Northern Ireland.

(2) Subject to subsection (3), appointments and promotions to any rank other than that of a senior officer shall be made, in accordance with regulations under section 25 of the 1998 Act, by the Chief Constable.

(3) A person shall not be appointed to the rank of constable unless he has—

(a) completed such period of service as a trainee (a “police trainee”) as may be prescribed by regulations under section 41(3); and

(b) complied with such other conditions relating to training as may be so prescribed.

(4) Subsection (3) does not apply to a person appointed in pursuance of an authorisation under section 47A(1).

38.— Attestation of constables.

(1) Every police officer shall, on appointment, be attested as a constable by making before a justice of the peace a declaration in the following form—

“I hereby do solemnly and sincerely and truly declare and affirm that I will faithfully discharge the duties of the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all individuals and their traditions and beliefs; and that while I continue to hold the said office I will to the best of my skill and knowledge discharge all the duties thereof according to law.”

(2) The Chief Constable shall take such steps as he considers necessary—

(a) to bring the terms of the declaration to the attention of all police officers appointed before the coming into force of this section; and

(b) to ensure that they understand it and understand the need to carry out their duties in accordance with it.

(3) “Traditions and beliefs” does not include a tradition or belief so far as it is incompatible with the rule of law.

71. It would have been possible to apply the ERO to police officers, by express provision deeming them to be employees or workers for the purposes of the ERO generally, or article 45 ERO in particular, so granting jurisdiction to the Tribunal to hear unlawful deduction claims brought by constables. But there is no such provision.

72. Contrast the deeming provision in the WTR, regulation 50, extracted above, which expressly applies those regulations to police officers who would otherwise not have been covered by the definition of “worker” in the WTR, noting that the WTR defines worker and employer identically to article 3 of the ERO, extracted above. See regulation 2:

“employer”, in relation to a worker, means the person by whom the worker is (or, where the employment has ceased, was) employed;”

“worker” means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a) a contract of employment; or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker’s contract shall be construed accordingly

[emphasis added]

73. Contrast also the deeming provisions in the ERO, which apply particular provisions (relating to protected disclosures, and health and safety detriment, not in issue in the present claims) to the police:

67KA. Application of Part VA [protected disclosures] and related provisions to police

(1) Paragraph (2) applies for the purposes of—

(a) this Part,

(b) Article 70B and Articles 71 and 72 so far as relating to that Article, and

(c) Article 134A and the other provisions of Part XI so far as they relate to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of Article 134A.

(2) A person who holds, otherwise than under a contract of employment, the office of constable shall be treated as an employee employed by the relevant officer under a contract of employment; and any reference to a worker being “employed” and to his “employer” shall be construed accordingly.

(3) In this Article “the relevant officer” —

(a) in relation to a police officer, means the Chief Constable; and

(c) in relation to any other person holding the office of constable, means the person who has the direction and control of the body of constables in question

72A. Application to police of Article 68 [health and safety detriment] and related provisions

(1) For the purposes of Article 68, and of Articles 71 and 72 so far as relating to that Article, the holding, otherwise than under a contract of employment, of the office of constable-shall be treated as employment by the relevant officer under a contract of employment.

(2) In this Article “the relevant officer”, in relation to a person holding the office of constable, means the person who under Article 47A of the Health and Safety at Work (Northern Ireland) Order 1978 is to be treated as his employer for the purposes of Part II of that Order.

169A. Application to police [health and safety dismissals]

(1) For the purposes of Article 132, and of the other provisions of this Part so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of Article 132, the holding, otherwise than under a contract of employment, of the office of constable shall be treated as employment by the relevant officer under a contract of employment.

74. Those extensions to police officers would not be necessary – indeed, would be pointless – if the provisions of the ERO applied to police officers by virtue of the definition of worker in article 3 or any other general provision.

75. The Claimants’ representatives have previously indicated[8] that rely on articles 3 and 243 of the ERO to resist the Respondent’s case on the jurisdiction point. Article 243 sets out a range of provisions (not in issue in the present claims) which “do not apply to employment under a contract of employment in police service or to persons engaged in such employment”:

243. Police officers

(1) Articles 40 to 42, Part V, Article 67M, Article 68A, Article 70, Article 70C, Chapter II of Part VI, Part VII (other than Articles 86 to 88), Parts VIII and IX, Articles 124 and 125 , Part XI (except Articles 132, 134A and 169A and the other provisions of that Part so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of Article 132 or 134A) and Part XIII do not apply to employment under a contract of employment in police service or to persons engaged in such employment.

(2) Part II does not apply in relation to police service.

(3) In this Article “police service” means—

(a) service as a police officer;

(b) subject to—

(i) section 126 of the 1994 c.33. Criminal Justice and Public Order Act 1994 (prison staff not to be regarded as in police service), and

(ii) Article 19 of the 1994 NI 1. Airports (Northern Ireland) Order 1994 (airport constables not to be regarded as in police service),

service in any other capacity by virtue of which a person has the powers or privileges of a constable. [emphasis added]

76. The Claimants contend that this provision refers only to regular PSNI police constables who, by implication, must be able to avail of any provision in the ERO not specifically excluded by article 243.

77. The Respondent submits that article 243 does not re-define the terms in article 3 ERO “employee”, “worker”, “employment” or “employed”, or extend, by implication, the application of the ERO to police constables in PSNI, in respect of the provisions which are not mentioned in article 243. It has no application to the present claims.

78. Article 243 ERO has been complicated by formulaic amendment by the Police (Northern Ireland) Act 2000, implementing the change of name from Royal Ulster Constabulary to Police Service of Northern Ireland. It is not nicely drafted. It has limited potential scope in Northern Ireland: to police officers engaged by contract, which the police officer Claimants in the present claims are not. However, the purpose of article 243 was and is clear: persons who might be employees of the police service (referring to PSNI) or engaged in such “employment” are excluded from the provisions referred to therein. This is also clear from the history of the provision and its analogue in the ERA 1996, section 200, referred to below.

79. See Commissioner of Police of the Metropolis v Lowrey Nesbitt [1999] ICR 401 (EAT) per Morison J. The question was whether a police officer serving in the Metropolitan Police Service was a “worker” within the meaning of the ERA 1996, so as to enable her to bring an unlawful deduction claim under Part II of that Act (including section 13, protection of wages, corresponding to article 45 ERO). The Tribunal held yes. The EAT held, emphatically, no.

80. The judgment considered, and dismissed, the potential application of section 200 to the opposite effect. Section 200 ERA 1996 – and the Respondent submits, article 243 ERO – is irrelevant in claims relating to office holders not engaged under any contract.

81. The reasoning in Lowrey Nesbitt went deeper:

a. Page 405 –

“the case law is clear, as at 1998, that a police constable’s status is governed by statute and that he owes allegiance to the community at large, through his oath of office, rather than through private contractual rights and obligations”;

b. Page 407, after a review of the case law. There was –

“no room for doubt as to what the position is. Whether as a matter of public policy, or because of the nature of his duties as a constable who has taken an oath, or because a police officer is an office holder, there is no room for any further argument short of the House of Lords for the proposition that a police officer is in an employment relationship with anyone” [emphasis added]

82. Lowrey Nesbitt was referred to in McGurnaghan v PSNI [2012] NIIT 01680_11IT by Kelly VP at para. 14, to support the generally uncontroversial proposition that a constable is not an employee, but an office holder. This was one component of the Tribunal’s reasons rejecting an attempt by full-time fixed-term reserve constables to claim unfair dismissal under the ERO. This was characterised (with respect, correctly) as a matter of jurisdiction. In relation to the relevance (or lack thereof) of article 243 ERO, the Vice President concluded at para. 22:

“Therefore the tribunal does not fully understand the existence of Article 243 on the arguments put before in this instance. Nevertheless it is clear that, as previously found, police constables are excluded from the right to claim unfair dismissal before this statutory tribunal because they are not employees. At worst, Article 243 seems to be merely superfluous and to have little discernible and real application within Northern Ireland.”

83. The Vice President also referred (at para. 14) to Re. Chambers [2005] NIQB 27 para. 10, per Girvan J:

“A member of the police force, of whatever rank, in carrying out his duties as a constable acts as an officer of the Crown and a public servant. His powers are exercisable by him by virtue of his office. He is not in law an employee.” The law is clear that police officers are not employees or workers, but office holders, whose terms of service are governed by statute.

84. Respondent counsel are not aware of any case in which Lowrey Nesbitt has been doubted since McGurnaghan in 2012. The opposite seems to be the case: in Redbridge London Borough Council v Dhinsa [2014] ICR 834 the Court of Appeal (England and Wales) referred with approval to Lowrey Nesbitt. See parts 5–7 of the judgment of Jackson LJ on the office of constable, including:

52 Ms Omambala began her submissions by pointing to the contrast between the professional constables who serve in police forces and the council staff who patrol the parks of Redbridge. Police officers have wide investigative powers and a panoply of other powers. Also an elaborate statutory scheme regulates their work. On the other hand the council employees who patrol the parks of Redbridge do not have such extensive powers. There is no elaborate statutory scheme regulating their work.

53 I agree with Ms Omambala that there is a distinction of the kind she asserts. Police officers are not employees of anybody. They are solely office-holders. As Morison J observed in Chief Constable of Lincolnshire Police v Stubbs [1999] ICR 547 , 552:

“A member of the traditional police forces is not regarded as an employee because he takes an oath of office and is not to be accountable to an employer for the way he carries out his duties. He is a member of a uniformed service, whose rules and Regulations are laid down by Parliament and he is subject to statutory disciplinary procedures.”

On the other hand the 13 members of the Redbridge Parks Police Service were employees of the council, who additionally became constables in order to serve in the Parks Police.

54 Although such distinctions exist, they do not mean that regular police officers are “real” constables, whereas officers patrolling the Redbridge parks are not. A police officer is undoubtedly one species of constable, but he/she is not a paradigm or template with which others claiming to be constables should be compared. As set out in Part 5 above, there are many different forms of constable. Some are employees. Some are not. Nevertheless they all hold the office of constable. They all have the basic statutory and common law powers incidental to the office of constable and can exercise those powers within a defined geographical area. In the case of police constables that is now the whole of the UK. In the case of other constables the geographical area of their jurisdiction is more narrowly defined.

… 61 In developing her first argument, Ms Omambala pointed to the sharp contrast between the complex organisation and structure of a police force and the much simpler set up of the Redbridge Parks Police Service.

62 In my view, this comparison is not helpful, because police officers do not fall within section 200 at all: see Comr of Police of the Metropolis v Lowrey-Nesbitt [1999] ICR 401. As previously noted, police constables are office-holders who do not have contracts of employment.

63 Section 200 of the Employment Rights Act 1996 only deals with constables who have contracts of employment. Examples of constabularies which fall within section 200(2)(a) are the British Transport Police, the Ministry of Defence Police, the Civil Nuclear Constabulary and the Royal Parks Constabulary. Thus in Spence v British Railways Board [2001] ICR 232 the Employment Appeal Tribunal held that the British Transport Police was ‘a constabulary maintained by virtue of an enactment’ within the meaning of section 200(2)(a) of the Employment Rights Act 1996. [emphasis added]

85. It is worth repeating that the Court of Appeal made clear that section 200 ERA 1996 “only deals with constables who have contracts of employment” (para. 63) and excludes them from certain employment protections. The Court then concluded, at para. 67, that section 200(2)(b) ERA 1996 “has no application. That applies to persons who are not constables, but have the powers or privileges of constables, for example water bailiffs.”

86. In Wandsworth London Borough Council v Vining [2018] ICR 499, the Court applied Redbridge to the effect that section 200 of the ERA 1996 was operative to exclude claimants employed by a council as parks constables, from unfair dismissal provisions. That exclusion did not offend Article 8 of the European Convention on Human Rights (though the Court urged reform, so that police officers engaged by contract did not fall between the cracks of unfair dismissal protection).

87. The Respondent submits that the police officer Claimants in the present case cannot invoke the right not to suffer unlawful deductions from wages in article 45 ERO. The Tribunal has no jurisdiction in relation to their article 55 ERO claims, which should be struck out.

88. In the event that the police officer Claimants are permitted by the Tribunal to advance claims under the ERO, the Respondent will rely on:

a. The time limit of three months in article 55 for bringing complaints to the Tribunal, as to which see further below;

b. Article 45(1)(a) to the effect that any deduction which the police officer Claimants may prove falls within the jurisdiction of the Tribunal was required or authorised to be made by virtue of a statutory provision. The Respondent paid police officers in accordance with the PSNI Regulations 2005 and determinations thereunder. The Respondent cannot make payments in respect of overtime not in fact performed and annual leave otherwise than in accordance with those regulations.

UNLAWFUL DEDUCTION CLAIMS: STAFF

89. The staff Claimants are employees. As such, they are entitled to make claims for unlawful deduction of wages under articles 45 and 55 ERO.

90. The House of Lords held in Inland Revenue Commissioners v Stringer [2009] UKHL 31; [2009] ICR 985 that the definition of “wages” in section 27(1) ERA 1996 was capable of referring to a payment due under the Working Time Regulations 1998, such that an employee may claim for unauthorised deduction of wages under section 23 ERA 1996. The Respondent does not contend otherwise in respect of the equivalent provisions in the ERO. The question of whether the Respondent did unlawfully deduct wages requires specific analysis.

TIME LIMITS: WTD AND ERO

91. The lead Claimants first filed their claims between 9 December 2015 and 16 November 2017, but they claim compensation for unlawful deductions “back to the start of my service or 1 October 1998 whichever is later”: [1/13].

92. Assuming (which is denied) that police officer Claimants may (like staff) claim for unlawful deductions, the Respondent submits that claims dating back to 1998 or start of service are unsustainable. They would also be complex to calculate and would plainly require the claims to be properly pleaded. No Claimant has, in the approximately 30 months since the first claims were filed, put a value on their claims, particularised the payments relied on, or provided a worked example of normal pay.

93. The key enforcement provision in the WTR is regulation 43, remedies, which also governs time limits:

43.— Remedies

[ex regulation 30 in the WTR 1998]

(1) A worker may present a complaint to an industrial tribunal that the worker’s employer—

(a) has refused to permit the worker to exercise any right the worker has under—

(i) regulation 12(1) or (2), 13(1), (2) or (3), 14(1) or (4), 15 or 16;

(ii) regulation 28, in so far as it applies where regulation 12(1), 13(1) or (2) or 14(1) is modified or excluded;

(iii) regulation 29, in so far as it applies where regulation 12(1), 13(1) or (2) or 14(1) is excluded; or

(iv) regulation 30(3), 34(2) or 35(4)(b); or

(b) has failed to pay the whole or any part of any amount due to the worker under regulation 17(2) or 20(1).

(2) Subject to regulation 44, an industrial tribunal shall not consider a complaint under this regulation unless it is presented—

(a) before the end of the period of three months (or, in a case to which regulation 49(2) applies, six months) beginning with the date on which it is alleged that the exercise of the right should have been permitted (or in the case of a rest period or leave extending over more than one day, the date on which it should have been permitted to begin) or, as the case may be, the payment should have been made; or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three or, as the case may be, six months.

(3) Where an industrial tribunal finds a complaint under paragraph (1)(a) well-founded, the tribunal—

(a) shall make a declaration to that effect, and

(b) may make an award of compensation to be paid by the employer to the worker.

(4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to—

(a) the employer’s default in refusing to permit the worker to exercise the right, and

(b) any loss sustained by the worker which is attributable to the matters complained of.

(5) Where on a complaint under paragraph (1)(b) an industrial tribunal finds that an employer has failed to pay a worker in accordance with regulation 17(2) or 20(1), it shall order the employer to pay to the worker the amount which it finds to be due.

94. Regulation 43(2)(a) provides[9] that the Tribunal shall not consider a complaint unless it is presented within three months, beginning with the date on which it is alleged the exercise of the right should have been permitted or the payment should have been made. The Respondent understands it to be agreed that the date of payment is the appropriate marker in the present claims, which concern annual leave in fact taken.

95. One potential difficulty is that pay slips issued by the Respondent do not separately identify payments in respect of annual leave. It should be uncontroversial, however, that:

a. For police officer Claimants, payments in respect of annual leave were made on the last banking day of the month in which the relevant leave was taken. Payment of salary simply continued during leave, at the appropriate pay point for each officer’s rank and length of service. See paras. 4.1 and 8.1 of the first statement of Mr King and, for example, para. 3 of the statement of PC Agnew;

b. For staff Claimants, payments were made on the third banking day before the end of the month in which leave was taken. The witness statements of the lead Claimants Mr Edgar and Ms Graham (para. 3 in both) are incorrect if they intend to assert they are paid three days before the end of the following month. See the first statement of Mr King at paras. 4.1 and 8.1.

96. The three-month limitation period may be extended in cases where the Tribunal is satisfied that it was not reasonably practicable for a complaint to be presented in time: regulation 43(2)(b) WTR. The burden of proof falls on claimants who wish to rely on that provision. No police officer or staff Claimant in the present claims has contended that it was not reasonably practicable for them to present their claims any earlier than they did. No evidence has been served to that effect.

97. The Tribunal should therefore consider the Respondent’s compliance with regulations 15 and 20 WTR in respect only of annual leave payments, if any, made inside the three-month period prior to the dates of issue of the ET1 claim form in each case.

98. In common with regulation 43(2)(a) and (b) WTR:

a. Claims under article 55(2)(a) ERO for breach of the right not to suffer unlawful deductions must be presented within three months of the date of payment of the wages from which the deduction was made;

b. That period may (article 55(4)) be extended where the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the relevant period of three months. Again, the burden of proof falls on claimants, but no such case has been advanced in the present claims.

99. The key difference between the limitation periods in the WTR and ERO – and therefore, on the Respondent’s case, between the police officer and staff claims – is that article 55 ERO permits a Claimant to rely on a “series” of unlawful deductions to, in effect, extend time, if the last defective payment in the series was within the three-month time limit. See article 55(3) ERO:

(3) Where a complaint is brought under this Article in respect of—

(a) a series of deductions or payments, or

(b) a number of payments falling within paragraph (1)(d) and made in pursuance of demands for payment subject to the same limit under Article 53(1) but received by the employer on different dates,

the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received. [emphasis added]

100. The Claimants have indicated they wish to rely on series of payments: see paras. 3–4 in the agreed lists of legal and factual issues for both police and staff claims. However, no Claimant has particularised the series of payments they rely on.

101. The Respondent’s case on jurisdiction in respect of the police officer claims – that those Claimants may not rely on articles 45 and 55 ERO – would, if accepted by the Tribunal, mean that the ‘series’ issue only pertains to the staff claims.

102. In principle, the Respondent contends that:

a. Claims in respect of allegedly defective annual leave payments should be limited to three months;

b. The Claimants are paid on a monthly basis. If no annual leave was taken and no allegedly defective payment made in respect of annual leave inside the three-month time limit, the claim fails;

c. If a Claimant did not perform overtime and/or receive the relevant allowances regularly prior to taking the annual leave relied on in their claim, within the three-month time limit, there will be no overtime pay and/or allowances which were required to be maintained during annual leave, such that the claim fails;

d. In cases where a defective annual leave payment does fall within the three-month time limit, and is relied on as the last payment in a series within the meaning of article 55(3)(a), the Claimants should particularise all payments said to constitute that series. Any gap in annual leave payments will break the series. Alternatively, any gap in payments of three months or more breaks the series.

103. The Claimants have not particularised the payments which they say constitute the series relied on in each of the lead claims, but they have pleaded, by way of replies to the Respondent’s notices for additional information, that “The Claimants do not

accept that there has been any break in the series of deductions of any of the Claimants”: [1/25].

104. Support for the submission that any gap in payments of three months or more breaks a series, is found in Bear Scotland per Langstaff J at paras. 79-81:

Conclusion in respect of series of deductions

79 Whether there has been a series of deductions or not is a question of fact: “series” is an ordinary word, which has no particular legal meaning. As such in my view it involves two principal matters in the present context, which is that of a series through time. These are first a sufficient similarity of subject matter, such that each event is factually linked with the next in the same way as it is linked with its predecessor; and second, since such events might either be stand-alone events of the same general type, or linked together in a series, a sufficient frequency of repetition. This requires both a sufficient factual, and a sufficient temporal, link.

80 I accept Ms Rose QC’s submission that the precise force of the word, common though it is, has to be understood in the legislative context. That is one in which a period of any more than three months is generally to be regarded as too long a time to wait before making a claim. The intention is that claims should be brought promptly. I doubt, therefore, that the draftsman had in mind that a deduction separated by a year from a second deduction of the same kind would satisfy the temporal link. It would have been perfectly capable of justifying a claim at the time, and within three months of it. Whereas when considering a series, as when considering whether there has been “conduct extending over a period” (the analogous provision in the Equality Act 2010) some events in the series may take colour from those that come either earlier or later, or both, so that the factual similarities can only truly be appreciated when a pattern of behaviour is revealed, the essential claim here is for payment in a sum less than that to which there is a contractual entitlement. The colour of such a deduction is, though not inevitably, at least likely to be clear within a short time after it occurs, if not at the time.

81 Since the statute provides that a Tribunal loses jurisdiction to consider a complaint that there has been a deduction from wages unless it is brought within three months of the deduction or the last of a series of deductions being made (ss.23(2) and (3) ERA 1996 taken together) (unless it was not reasonably practicable for the complaint to be presented within that three month period, in which case there may be an extension for no more than a reasonable time thereafter) I consider that Parliament did not intend that jurisdiction could be regained simply because a later non-payment, occurring more than three months later, could be characterised as having such similar features that it formed part of the same series. The sense of the legislation is that any series punctuated from the next succeeding series by a gap of more than three months is one in respect of which the passage of time has extinguished the jurisdiction to consider a complaint that it was unpaid. [emphasis added]

[Paragraph 82 of the judgment has already been cited above]

105. The Respondent repeats that the Tribunal is concerned with payments in respect of annual leave taken pursuant to the WTD and regulation 15 WTR. The Tribunal will be concerned with payments and gaps in payments in respect of such leave.

106. See also the commentary in Harvey on Industrial Relations and Employment Law, paras. 238.03–05, inter alia:

… In any case where an employer has underpaid a worker for reg 13 [WTR 1998] leave over a period of time, by not including over-time or commission in the calculation of a week’s pay, and a claim is made within time for the most recent underpayment, it will be necessary to trace backwards to identify each occasion of a payment made based on the incorrect application of the WTD-compliant formula. As soon as a gap of more than three months between such payments is identified, the series link can be taken to be broken. [emphasis added]

107. There is nothing unusual or unfair in giving the time limits meaning in these claims. The intention of a three-month time limit is that claims should be brought promptly. A fresh cause of action arose in respect of each alleged defective payment of annual leave, but that did not suspend or extend limitation in respect of other such payments dating back to 1998.

INTERACTION WITH OTHER FORMS OF LEAVE

108. The Claimants allege, in their replies to the Respondent’s notices for additional information, that the Respondent has refused requests for annual leave and/or that the lead Claimants were not able to take annual leave, by choice or for various reasons – and that this is relevant to the Tribunal’s consideration of the ‘series’ of payments issue for limitation purposes: [1/25]. Some Claimants’ witness statements identify periods during which they allege they were not able to take annual leave due to the taking of another form of leave, e.g. paid sick leave. The lead claims selected by the Claimants are directed principally to exploring the issue of breaks in series of payments for high-overtime officers and staff.

109. However, the Claimants’ pleaded claims are to the effect that they have taken annual leave, and that pay in respect of such leave did not reflect normal pay, to include overtime and (in the staff claims) certain allowances. They do not allege loss of any annual leave entitlement (in days) or non-payment of any form of leave other than annual leave. They have not pleaded any discrimination claim. The Respondent submits that there is nothing in the parties’ pleaded cases which requires the Tribunal to find facts as to why annual leave was not taken by the Claimants at any particular time. The claims concern payments for annual leave in fact taken.

110. This skeleton argument has attempted to assist the Tribunal with the law in outline and address matters of principle. But the legal issues cannot be resolved without establishing the underlying factual basis of the claims. The Respondent will make further submissions on normal pay and limitation in respect of each of the lead claims, when the payments relied on are particularised and/or following oral evidence.

19 September 2018

JOHN BEGGS QC

Serjeants’ Inn Chambers

London EC4Y 1AE

RACHEL BEST BL

Bar Library, Belfast

AARON RATHMELL BL

Serjeants’ Inn Chambers

London EC4Y 1AE

COUNSEL FOR THE RESPONDENT

Case No. 112/16 and others

IN THE OFFICE OF THE INDUSTRIAL TRIBUNALS

AND THE FAIR EMPLOYMENT TRIBUNAL

BETWEEN:

AGNEW & OTHERS

SMYTH & OTHERS

CLAIMANTS

-AND-

(1) CHIEF CONSTABLE OF THE POLICE SERVICE OF NORTHERN IRELAND

(2) NORTHERN IRELAND POLICING BOARD

RESPONDENTS

______________________________________

RESPONDENT’S CLOSING SUBMISSIONS

______________________________________

1. These are the Respondent’s written closing submissions, to accompany oral submissions on 1–2 October 2018. They attempt to summarise and address all matters before the Tribunal, though the Respondent continues to rely on his written opening and reply submissions dated 19 and 23 September 2018 respectively.

Summary

2. The Respondent’s case can be summarised as follows:

a. The Respondent admitted, in his response to the claims, that police officers and staff are entitled to be paid their “normal pay” during the 4 weeks annual leave (“AL”) mandated by Directive 2003/88/EC (“the WTD”) and that payments in respect of overtime may in principle form part of normal pay [1/408, paras. 10–12];

b. The present litigation is about past loss, not the position from 1 April 2018 onwards. The question is whether article 7 of the WTD [AB29] in relation to payments required during annual leave has been breached in each case, and how to calculate any loss accurately;

c. The law is clear that the question of breach of the WTD requires specific factual analysis. It depends on the pay normally received by each Claimant, in the particular the reference period leading into each period of AL;

d. The police officer Claimants may advance their claims under the Working Time Regulations (NI) 1998 or 2016 (“the WTR”) subject, as always, to limitation periods;

e. The time limit for bringing a claim under the WTR is 3 months i.e. AL payments within 3 months of the date of issue of the claim fall within time;

f. The police officer Claimants cannot advance their claims under the Employment Rights (NI) Order 1996 (“the ERO”) and therefore cannot rely on a “series” of payments to, in effect, extend the limitation period;

g. EU law permits, in the interests of legal certainty, reasonable limitation periods for bringing proceedings. The 3-month limitation period in the WTR for police officers complies with EU law and is reasonable in the circumstances of this case;

h. The staff Claimants (and, if the Respondent is wrong on the ERO worker point, the police officer Claimants) may claim in respect of a “series” of payments under the ERO, provided that each Claimant can establish that the last payment fell within 3 months of the date of issue of their claim;

i. A reasonable interpretation of the word “series” must recognise that a series of non-WTD compliant payments may be interrupted in a number of ways –

i. By three month gaps, following Bear Scotland Ltd v Fulton [AB268];

ii. By the irregular nature of such payments;

iii. Because WTD- or ERO-compliant payments interrupt a series of non-compliant payments;

j. While it would be open to the parties to agree a pragmatic, administration-friendly method for calculating any ‘top up’ payments due to individual Claimants, the Tribunal cannot, with respect, order the Respondent to calculate past losses otherwise than accurately and fact-sensitively in each case;

k. The Claimants should be required to properly particularise the loss claimed in the lead claims, and the Respondent should then be permitted to respond.

Normal pay in principle

3. In Bear Scotland Ltd v Fulton, Langstaff J reviewed the key CJEU authorities and concluded at para. 44 [AB287]:

Despite the subtlety of many of the arguments, the essential points seem relatively simple to me. ‘Normal pay’ is that which is normally received. As Advocate General Trstenjak observed in Williams, there is a temporal component to what is normal: payment has to be made for a sufficient period of time to justify that label. In cases such as the present, however, where the pattern of work is settled, I see no difficulty in identifying ‘normal’ pay for the purposes of EU law, and accept that where there is no such ‘normal’ remuneration an average taken over a reference period determined by the Member State is appropriate. [emphasis added]

4. In Patterson v Castlereagh BC [AB445], the Court of Appeal held at para. 21, following a review of the key EU and domestic case law: “It will be a question of fact for each Tribunal to determine whether or not that voluntary overtime was normally carried out by the worker and carried with it the appropriately permanent feature of the remuneration to trigger its inclusion in the calculation” [AB/445, bottom] (emphasis added).

5. In Dudley MBC v Willetts, Simler P summarised, at para. 39 [AB310] “the overarching principle and objective of Article 7 which is to maintain normal remuneration so that holiday pay corresponds to (and is not simply broadly comparable to) remuneration while working” and (at para. 40) “for a payment to count as ‘normal’ it must have been paid over a sufficient period of time. This will be a question of fact and degree. Items which are not usually paid or are exceptional do not count for these purposes. But items that are usually paid and regular across time may do so”. See also para. 44:

It seems to me that applying the overarching principle established by the CJEU in Williams and Lock, in a case where the pattern of work, though voluntary, extends for a sufficient period of time on a regular and/or recurring basis to justify the description ‘normal’, the principle in Williams applies and it will be for the fact-finding tribunal to determine whether it is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration. (emphasis added)

6. Normal means normal. There is no doubt that, generally, the Respondent does rely on the performance of overtime by police officers and, to a lesser degree, staff. But individuals who perform irregular and limited overtime in an annual leave year[12] cannot be said to have “normal” pay derived from overtime which must be “maintained” into particular periods of AL.

7. The Tribunal should not simply proceed to determine the average overtime for each Claimant per day in a given year and then multiply that by 20 (the number of AL days required by the WTD), as the Claimants suggest at para. 122 of their written opening

submissions. Overtime is not necessarily a normal and settled feature of the remuneration of each Claimant in each leave year, or leading into particular periods of leave.

8. For example, if a worker takes AL early in a leave year in which they have not yet performed any overtime, there is no overtime pay which has to be maintained into that particular AL period. But if, later in the year, overtime payments become a regular feature of the worker’s income, those payments will have to be maintained into the worker’s next AL period.

9. The Claimants’ approach is at odds with the repeated statements of the CJEU to the effect that “remuneration must be maintained and that, in other words, workers must receive their normal remuneration for that period of rest”, which requires specific analysis (e.g. Lock v British Gas Trading Ltd [AB373] para. 16). An employer does not have to “maintain” payments which are not an established feature of a particular police officer or staff’s income.

The appropriate reference period

10. The purpose of a reference period is to accurately ascertain what normal pay was in the period leading into the AL of each police officer or staff member. The Respondent submits that a 12-week reference period is generally appropriate, by reference to the purpose of the WTD and in the interests of calculating past losses accurately. This is effectively the same reference period contended for by the Anderson group of Claimants [e.g. 1/358], represented by Edwards & Co Solicitors – 13 weeks (see also Patterson v Castlereagh BC [AB444] para. 8).

11. Of course, a year-long reference period would be simpler, administratively. It may also act as a disincentive to workers or employers manipulating the performance/provision of paid overtime. The Respondent is not the only employer whose use of overtime varies throughout the year. But the present claims are claims for past loss. The Tribunal cannot with respect order the Respondent to account for past loss otherwise than accurately – viz. fact sensitively, on the basis of normal pay in the period leading into AL for individual officers and staff.

12. The question of administrative arrangements for the future payment of AL is not technically a matter before the Tribunal. It would be open to the Claimants and the Respondent to agree the relevant methodology going forward. In this connection, the Respondent maintains that a divisor of 20/365 is appropriate, for the purposes of a calculation which is intended, pragmatically, to span a 12-month reference period, in respect of overtime which the Claimants’ have the opportunity to work on any day of the year and AL which the Claimants may take at any point throughout the year. (20/365 is to be multiplied against the total overtime for that AL year)

13. An alternative is to calculate normal pay, for each officer, each and every time they take AL, based on a shorter reference period. But that would be an administrative headache and it is unsurprising that a pragmatic solution was reached, between the NPCC and PFEW [WB107–108].

The ERO worker issue

14. The Respondent submits that police officer Claimants cannot claim for breach of the right not to suffer unlawful deductions under article 45 ERO [AB40] because they are public officer holders and not employees or workers. Article 45 applies to “employees”, “workers” with contracts and “employers”. When the ERO refers to “workers”, it refers to workers as defined in article 3 ERO [AB34]. That definition does not include police officers. Police officers do not serve pursuant to a contract of employment, or “any other contract” for personal work or service within the meaning of article 3(3)(b) ERO.

15. Rather, police officers are public officials who serve the Crown pursuant to statute and common law. This is a matter of high and long-established authority.

16. The case law is clear and consistent:

a. Farah v Commissioner of Police of the Metropolis [1998] QB 65, p. 85: “It is engrained in the law of the constitution that police constables are office holders; there is no relationship of employer and employee. In order to provide a remedy to a police officer who is discriminated against in the field of employment (in Part II) the Act has a special provision in section 16” [AB710];

b. Commissioner of Police of the Metropolis v Lowrey Nesbitt per Morrison J at p. 405 [AB710]: “… a police constable’s status is governed by statute and that he owes allegiance to the community at large, through his oath of office, rather than through private contractual rights and obligations” and p. 407 [AB712]: “… there is no room for any further argument short of the House of Lords for the proposition that a police officer is in an employment relationship with anyone…”;

c. Re. Chambers [2005] NIQB 27 para. 10, per Girvan J [AB432, top]: “A member of the police force, of whatever rank, in carrying out his duties as a constable acts as an officer of the Crown and a public servant. His powers are exercisable by him by virtue of his office. He is not in law an employee”;

d. Redbridge LBC v Dhinsa paras. 62–63 [AB457]: “… police officers do not fall within section 200 at all … As previously noted, police constables are office-holders who do not have contracts of employment … Section 200 of the Employment Rights Act 1996 only deals with constables who have contracts of employment”;

e. Halsbury’s Laws of England, vol. 84, para. 4:

A member of a police force, of whatever rank, when carrying out his duties as a constable acts as an officer of the Crown and a public servant. His powers, whether conferred by common law or statute, are exercised by him by virtue of his office, and unless he is acting in execution of a warrant lawfully issued can only be exercised on his own responsibility.

17. The police officer Claimants were wrong to describe themselves as “employees” in their claim forms (e.g. [1/6]). The Tribunal does not have jurisdiction under articles 45 and 55 ERO to hear their claims.

18. Whether a police officer may claim for unlawful deduction of wages was considered directly in the case of Lowrey Nesbitt by reference to the Employment Rights Act 1996, the analogue of the ERO. That decision is clear that police officers cannot so claim. While this judgment is not formally binding in Northern Ireland, the authorities on which it was based are of high authority and it was cited and followed by the Vice President of the Tribunal with approval in McGurnaghan v Chief Constable of PSNI at paras. 14 and 20 [AB431–3].

19. The point is further demonstrated by the fact that some protections in the ERO have been extended to police officers, by specific deeming provisions, such as article 67KA(2) (protected disclosures). There is conspicuously no such deeming provision in respect of article 45 ERO.

20. Further still, the WTR adopts the same general definition of “worker” as the ERO: see regulation 2 WTR 1998 [AB7] and 2016 [AB20]. But the WTR contains a deeming provision, for the purposes (only) of the WTR, which expressly applies those regulations to police officers: regulations 38 WTR 1998 [AB17] and 50 WTR 2016 [AB27]. These deeming provisions are necessary because police officers do not otherwise meet the definition of worker.

21. The police officer Claimants rely on article 243 ERO [AB44], to the effect that it implies a different position in Northern Ireland. That would be a surprising result, even if the effect of article 243 was clear – which it is not entirely. The purpose of article 243 is contended to be this: Police officers who are employees of the police service (referring to PSNI) or engaged in such “employment” (a defined term, referring, in article 3(5) ERO, to workers’ contracts) are excluded from the provisions referred to in article 243. The Vice President was, with respect, correct to observe in McGurnaghan that article 243 has “limited potential scope in Northern Ireland” and “… seems to be merely superfluous and to have little discernible and real application”, paras. 21–22 [AB434].

22. In summary, the Claimants’ case on the “worker” point fails to acknowledge:

a. The absence of contractual relations which might bring the police officers within the ERO generally;

b. The absence of a specific deeming provision, permitting police officers to bring a claim under article 45 ERO;

c. The existence of other (unrelated) deeming provisions, which do deal specifically with police officers, but which would be rendered pointless if the Claimants’ interpretation of the scope of the ERO were correct.

23. Paragraphs 64–70 of the Claimants’ opening submissions recite the “expansive and autonomous European meaning” of the term “worker” and invite the Tribunal to consider why this would not apply to police officers.

24. But it is not necessary to do so. There is no dispute that the WTD does apply to police officers and grants them 20 days paid AL. The WTR implements this EU law requirement in Northern Ireland, by treating police officers as employed under a worker’s contract, reg. 50 (ex 38) (“For the purposes of these Regulations”) [AB27] and providing them a remedy for breach, reg. 43 (ex 30) [AB25].

25. Neither the WTD not the WTR require, however, that police officers are treated as workers for the purposes of a different statute, the ERO.

EU law regarding limitation periods

26. The Tribunal should not assume jurisdiction in respect of claims by police officers under the ERO by application of EU law.

27. The Tribunal is a creature of statute, with limited jurisdiction. See article 4 of the Industrial Tribunals (NI) Order 1996: “Industrial tribunals shall exercise the jurisdiction conferred on them by or by virtue of this Order or any other statutory provision”.

28. Under EU law, questions of jurisdiction, procedure and remedies are in general left to domestic law. See Levez v TH Jennings, para. 18: “… in the absence of Community rules governing the matter it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law …”, subject to the principles of equivalence and effectiveness [AB781].

29. Neither the words of the WTD nor the case law of the CJEU mandate particular procedural rules or limitation periods. But it is clear that policy choices have been made by Parliament and the Northern Ireland Assembly in domestic law, including to extend some of the provisions in the ERO to police officers but not others; and to apply the WTR to police officers by specific deeming provision, as stated: reg. 50 (ex 38) [AB27].

30. McGurnaghan v Chief Constable of PSNI [AB425] involved claims by police officers for unfair dismissal and age discrimination, said to be within the jurisdiction of the Tribunal by reference to EU and human rights law. Those claims were rejected. The analysis of the Vice President of the Tribunal at paras. 6–10 [AB428–430] was, with respect, correct and consistent with high authority, including the following:

31. Marleasing SA v La Comercial Internacional de Alimentacion SA (C-106/89) [1992] 1 CMLR 305 requires (para. 8) the Tribunal, within its jurisdiction, to interpret domestic law conformably with the WTD.[13] But to assume jurisdiction under the ERO in relation to the police officer Claimants would not be a proper application of this principle. That would alter the scope of the ERO, ignore the policy choices referred to above and cut across the long-standing authority as to the status and regulation of police officers. It would also be unnecessary, in circumstances where police officer Claimants have an effective remedy in respect of their WTD AL rights – under the WTR.

32. The Tribunal may, within the scope of its jurisdiction, apply and enforce EU law, and decline to apply a provision of a domestic statute which is incompatible with EU law. But what provision do the Claimants say is incompatible with EU law? The 3-month limitation period in the WTR? In the circumstances of the present case, such a limitation period does not offend EU law and is compatible with the principle of legal certainty.

33. In Levez v TH Jennings, the CJEU held that a 2-year limitation period was, in the specific context, incompatible with EU law. But this was primarily because there was no discretion to extend the limitation period, in a case involving sex discrimination and deceit by the employer, para. 32: “It is plain that the ultimate effect of this rule would be to facilitate

the breach of Community law by an employer whose deceit caused the employee’s delay in bringing proceedings for enforcement of the principle of equal pay” [AB783].

34. That bears no resemblance to the circumstances of the police officer Claimants. The limitation rules which they seek to disapply do permit the exercise of discretion, in appropriate cases: see reg. 43(2)(b) [AB25]. But this is not an appropriate case, because the Claimants should and could have issued their claims earlier and they do not contend to the contrary.

35. It should also not be forgotten that in Levez v TH Jennings, the CJEU confirmed the general compatibility of reasonable limitation periods with EU law, including limitation periods which require the rejection, in whole or part, of claims based on EU rights [AB782]:

[19] The Court has thus recognised that it is compatible with Community law for national rules to prescribe, in the interests of legal certainty, reasonable limitation periods for bringing proceedings. It cannot be said that this makes the exercise of rights conferred by Community law either virtually impossible or excessively difficult, even though the expiry of such limitation periods entails by definition the rejection, wholly or in part, of the action brought.

[20] Consequently, a national rule under which entitlement to arrears of remuneration is restricted to the two years preceding the date on which the proceedings were instituted is not in itself open to criticism. [emphasis added]

36. The recent case of King v Sash Window Workshop has been emphasised by the Claimants [AB744]. In para. 63 the CJEU held that “an employer that does not allow a worker to exercise his right to paid AL must bear the consequences”, before concluding, in para. 65, that a member state may not prevent a worker from “accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several

consecutive reference periods because his employer refused to remunerate that leave” [AB760].

37. The Claimants ask in para. 96 of their written opening submissions, “By analogy, why should a worker who has taken annual leave and been underpaid (as opposed to not paid at all) be in any different position?”

38. The answer is this: King v Sash Window Workshop was decided on entirely different facts. It is not binding in the present case. The claimant had not been permitted to take any paid AL: para. 16 [AB757]. Hence the Court was addressing “the very existence of the right to paid annual leave”: para. 62 [AB760].

39. In King the CJEU did not address the operation of domestic limitation periods more generally nor the calculation of normal pay in the context of overtime. The Court’s “bear the consequences” comments does not spell the end of domestic limitation periods, as to which, see the case law cited above. The Tribunal should, in any event, take limitation periods seriously. The policy of time limits is, in part, to prevent stale claims causing forensic, administrative and financial disruption which is contrary to good administration.

40. Nor does the EU law principle of equivalence require the Tribunal to disapply the 3-month limitation period in the WTR and apply the different limitation period under the ERO.

41. The purpose of the principle of equivalence is “to prevent member states from discriminating against claims based upon EU law by affording them inferior procedural treatment from that afforded to comparable domestic claims”: Totel Ltd v HMRC [2018] 1

W.L.R. 4053 [Supp AB27]. “What is required is that the procedure should be broadly as favourable as that available for truly comparable domestic claims, rather than the very best available”, paras. 45–46.

42. The principle of equivalence was applied in the employment context in Levez v TH Jennings and Inland Revenue v Stringer. In both cases, the claimants had lost their EU law rights, for reasons beyond their control – having been, respectively, deceived or absent on extended sick leave. The claimants’ comparable domestic law rights were the subject of more favourable limitation rules:

a. In Levez, the problem was that the EU law right to equal treatment between men and women was the subject of a guillotine limitation period, without any discretion to extend it in appropriate cases – unlike similar causes of action based on domestic law conveniently available to the claimant in the Tribunal;

b. In Stringer, there was no dispute that the English equivalent of the ERO (the Employment Rights Act 1996) applied to the appellants, who were employees and therefore entitled to bring their claims under the 1996 Act and/or the WTR in the Tribunal. Bringing the claim under the ERO was also consistent with the language of the domestic rule.

43. By contrast, the police officer Claimants in the present case are not entitled to claim under the ERO, whether by reference to their EU rights or rights derived from domestic law. Hence there is no discrimination against EU rights. The principle of equivalence does not require or justify more favourable treatment for EU law rights. The police officer Claimants are not entitled to create a flexible and favourable limitation period in the

Tribunal for the purposes of the WTD, not available to them in respect of other police pay claims.

44. No authority is cited by the Claimants for the proposition that EU law requires that procedures and remedies must be the same for police officers as they are for employees. That is not the principle of equivalence. Police officers have long been treated differently in domestic law, because of their constitutional status, their roles, the manner in which their pay and conditions are consulted upon and determined, their workplace representation, and the limited number of police “employers”.

45. This is not a case where the UK has failed to apply the protections of the WTD to police officers at all, or a case where police officers have been barred from access to the Tribunal or Courts to enforce their rights. The police officer Claimants have, and have always had, the benefit of the WTR.

46. Nor is the treatment of the police officer Claimants unfair in a more general sense. The purpose of the WTD is to grant workers 4 weeks paid AL, in the interests of their health, safety and rest. In the present case, the Claimants enjoyed more generous leave entitlements. The Claimants took the leave in question. The Respondent paid them to do so, in accordance with the law as it was widely understood.[14] In this context, the reference in the Claimants’ opening submissions to unjust enrichment is ironic. Claims to ‘top up’ AL payments made as long ago as 1998 have nothing to do with the health and safety purpose of the WTD.[15]

47. The Claimants argue (e.g. para. 38 of their written opening submissions) that the question of whether a worker has in fact been deterred from taking their leave is irrelevant: that in accordance with the case law of the CJEU, it should be “taken as read” (the Claimants’ oral opening submissions) that there is a disincentive and therefore a breach of the WTD. Again, that is a formalistic position for the Claimants to adopt, in circumstances where:

a. No Claimant has advanced evidence to the effect that they were ever deterred from taking their leave;

b. The Police Federation witness for the Claimants, Mr McCrum (day 2), agreed in cross-examination that there was no suggestion in the ranks that police officers do not take their AL because of overtime issues.

48. Decisions of the CJEU are sometimes expressed in the abstract. But the CJEU is not insensitive to the realities of cases. The CJEU articulates the purpose of EU law, applies that to the facts stated in references from the national court in general terms; then refers the case back to the national court to decide in the context of national rules and the circumstances as a whole. The obligation is to achieve the results envisaged by the Directive.

49. In the present case, domestic rules permit the police officer Claimants to enforce their WTD rights – under the WTR, not the ERO – subject to a conventional 3-month limitation period, common in the Tribunal’s various statutory jurisdictions. The Tribunal should not depart from domestic law in this regard.

WTR time limit: 3 months

50. Regulation 43(2)(a) WTR [AB25] (ex 30) states that an industrial tribunal “shall not consider” a complaint under this regulation unless it is presented “before the end of the period of three months … beginning with the date on which … the payment should have been made”. The Tribunal does not have jurisdiction to consider payments before that period. A fresh cause of action will arise in respect of each alleged non-compliant payment of AL, but that does not suspend or extend limitation in respect of other such payments dating back to 1998.

51. The police officer Claimants may not rely on the concept of a “series” of payments to extend time, which is found in article 55(3)(a) ERO (as to which, see further below) but not found in the WTR. However, an extension of the time limit is permitted by regulation 43(2)(b) WTR, “in a case where [the Tribunal] is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three … months” [AB25].

52. The burden of proof falls upon Claimants who wish to rely on that provision. It is the sort of test applied by the Tribunal routinely in employment claims.[16] Ignorance of the law is no excuse, see for instance Biggs v Somerset County Council [1996] 2 C.M.L.R. 292 (EWCA Civ), which related to a claim brought well out of time following developments in case law relating to EU rights, para. 35 per Neill LJ:

“I appreciate the hardship which may be caused to individual claimants, but I can see no satisfactory basis for disapplying a time limit to enable a claim to be advanced which as a matter of law was capable of being enforced at the moment of dismissal. I am not persuaded that one can relax a time limit to assist a claimant who was ignorant of the law, when the same time limit would have to be enforced against a claimant in a similar situation who was fully aware of his or her legal rights”

53. No police officer or staff Claimant in the present claims has contended that it was not reasonably practicable for them to present their claims any earlier than they did. No evidence has been served to that effect. In the present case, the Tribunal will recall that Mr McCrum, the Claimants’ Police Federation representative, was candid in his oral evidence (day 2) that this group litigation has arisen in response to the judgment of the EAT in Bear Scotland Ltd v Fulton. The fact that the Claimants have brought their claims in response to a perceived change in the law is not a basis for extending time. The Claimants would in any event also have to explain why they waited more than a year, following that judgment, and in some cases three years, to issue their first claims.

54. When is the date of payment for the purposes of regulation 43(2)(a) WTR and the limitation period?

55. The Claimants sought during the hearing to complicate this question, in the abstract. For example, pay in respect of overtime is received in the month following performance of the overtime. For some police officers and staff, up to 48 hours of overtime credit may be stored in a rolling ‘TOIL bank’ for three months, meaning the payment in respect of that overtime may not be received until later still, and so on.

56. But the answer for limitation purposes is simple: payments in respect of AL “should have been made” at the end of the month in which the leave is taken. Specifically, police officers receive their pay on the last banking day of the month; staff receive their pay on the third banking day before the end of the month (see paras. 4.1 and 8.1 of the first statement of Mr King [WB104–107]). There is no serious dispute about this. These claims are about payment in respect of AL in fact taken.

ERO time limit: series

57. The staff Claimants are employees. As such, they are entitled to make claims for unlawful deduction of wages under articles 45 and 55 ERO. As the House of Lords made clear in Inland Revenue v Stringer [AB333], the word “wages” for present purposes includes payments due in respect of AL.

58. The time limit for bringing a complaint of unlawful deduction of wages under ERO is 3 months, from the date of payment. Article 55(2) ERO states “an industrial tribunal shall

not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with—(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made” [AB42].

59. In common with the WTR limitation provision, article 55(4) ERO [AB43] permits an extension “Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable” – not relevant in this case, for the reasons set out above.

60. Article 55(3)(a) ERO states “Where a complaint is brought under this Article in respect of … a series of … payments … the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received” [AB42]. Again, this is the key difference between the limitation periods in the WTR and the ERO – and therefore, on the Respondent’s case, between the police officer and staff claims.

61. Article 55(3)(a) ERO permits a Claimant to rely on a “series” of unlawful deductions to, in effect, extend time, if (and only if) the last defective payment in the series was within the 3-month time limit. It follows that:

a. If no AL was taken and therefore no non-WTD compliant payment made in respect of AL inside the 3-month time limit, the claim fails;

b. If a Claimant did not perform any overtime or receive the allowances claimed prior to taking the AL relied on, within the 3-month time limit, there will be no difference in the “normal pay” required to be maintained, and no non-compliant payment within time, such that the claim fails.

62. The case law is clear that what constitutes a “series” of payments is a question of fact. In the most recent case relied on by the Claimants, Coletta v Bath Hill Court [AB730], the EAT (HHJ Eady QC) held that whether there has been a series of deductions is a question of fact: paras. 13 [AB732] and 45 [AB735], referring to para.79 of Bear Scotland [AB296].

63. If a series of deductions is found in fact, there is no further limitation period. Coletta v Bath Hill Court did not break new ground in that respect. It was a case concerning non-payment of the national minimum wage for 15 years. It is not apparent from the judgment that the series of defective wage payments in issue had ever, even arguably, been broken.

64. The earlier cases relied on by the Claimants in the present litigation, for the purposes of the ERO limitation period (and not the WTR) are to the same effect:

a. Wilton Ltd v Peebles [AB737] was a series case in the EAT under section 5(3) of the Wages Act 1986, repealed: “Where a complaint is brought in respect of … a series of deductions or payments …”. The context was the refusal by an employer to honour a national increase in wages. Understandably, Mummery J concluded “If there is a series of deductions, week after week or month after month, the three-month period runs from the date of the last deduction” [AB743].

b. List Design Group Ltd v Douglas [AB725] was another EAT case, concerning workers who were not given holiday pay. After the passage of the WTR, their employer wrote to them, stating, “As you will be aware from your existing contract your rate currently includes an allowance to cover the provision of holidays” viz. rolled up holiday pay. The Tribunal concluded that that letter was unsustainable: “at best disingenuous and at worst a transparent attempt by the employers to circumvent the Regulations”, para. 19 [AB727]. The Tribunal had found as fact that the employer had made a series of deductions in respect of holiday pay for limitation purposes, a point which the employer did not pursue on appeal, para. 28;

c. Canada Life Ltd v Gray [AB714] was also a series case in the EAT, in respect of worker contracts on a commission only basis which did not provide for any holiday pay.

65. Those cases plainly turned on their facts. They do not assist the Tribunal greatly with the question of when a series might be broken.

66. By contrast, Bear Scotland Ltd v Fulton contains sustained and careful analysis of the concept of a “series” of payments, in the context of payments for AL under the WTD. In particular, what constitutes a series and when a series might in principle be broken. Both a factual and a temporal link is required, before payments may be said to form part of the same “series”. So far as counsel for the Respondent are aware, the judgment has not been overturned or criticised in any higher court.

67. In their opening oral submissions, the Claimants described the analysis of limitation by Langstaff J as a “passing whim” and “devoid of any reasoning”. That seems harsh, not least because Langstaff J (a High Court judge) is exceptionally experienced in the employment field (as Sir Colin Rimer remarked in Lock at para. 58 [AB405]).

68. The Tribunal is, with respect, invited to re-read Bear Scotland [AB268], which reviews the authorities, considers submissions on this issue in detail, and culminates in paras. 79–81, part of the ratio in that case:

intend that jurisdiction could be regained simply because a later non-payment, occurring more than three months later, could be characterised as having such similar features that it formed part of the same series. The sense of the legislation is that any series punctuated from the next succeeding series by a gap of more than three months is one in respect of which the passage of time has extinguished the jurisdiction to consider a complaint that it was unpaid.

[emphasis added]

69. The implications of this decision are summarised in Harvey on Industrial Relations and Employment Law, para. 238.05:

In any case where an employer has underpaid a worker for reg 13 [WTR, see now reg. 15] leave over a period of time, by not including overtime or commission in the calculation of a week’s pay, and a claim is made within time for the most recent underpayment, it will be necessary to trace backwards to identify each occasion of a payment made based on the incorrect application of the WTD-compliant formula. As soon as a gap of more than three months between such payments is identified, the series link can be taken to be broken. For most employees this will preclude significant periods of past underpayment being pursued, but some may have patterns of taking holidays such that the link is not broken; this may turn on when in each case the leave year ends; and the position of those who take frequent but brief periods of leave may be stronger than those who take longer but infrequent holidays.

70. The subsequent decision of the CJEU in King v Sash Window Workshop did not consider the concept of a “series” of payments generally or the analysis in the Bear Scotland judgment specifically. Again, the CJEU’s pronouncements in that case do not spell the end of domestic limitation periods. This has been dealt with above.

71. The Claimants’ case on the “series” point is put in broad and uncompromising terms: everything counts, going back to 1998 or the start of each Claimants’ service. The payments said to constitute the series relied upon are not particularised, even in respect of the Claimants’ 14 lead cases. But their submissions are plainly based on the notion that because all the alleged deductions in issue relate to AL pay, they form, at a high level, a “series”. This is wrong in law.

72. The Claimants case may have been sustainable, if article 55(3) ERO referred to a series of deductions or payments “of the same type”, or “due to the same error”, or referred to a course of conduct or a continuing state of affairs. But that is not the wording of article 55(3) ERO, which refers to a “series of … payments”.

73. This topic was addressed in the return of the Bear Scotland litigation to the EAT, chaired by Lady Wise [AB320]. See para. 25:

… There is an obvious difference between payments of or deductions from wages, which will be made at specific and easily identifiable moments of time, and acts of discrimination which may be isolated events or part of an ongoing course of conduct that may be consistent or erratic. The ratio of the Langstaff J judgment on the limitation rule in section 23 ERA 1996 is that (i) whether or not there has been a series of deductions is a question of fact and (ii) that it is not enough where what is involved is a series of payments or deductions to show a factual link because the legislation limits the jurisdiction of the Tribunal in a way linked to the date or dates of payment/non-payment … The Langstaff decision then construes a provision that focuses on dates of payment or deductions … [AB331, emphasis added]

74. In any event, the implications of the Claimants’ expansive approach to the meaning of “series” would be extraordinary and antithetical to the imposition of the 3-month limitation period.

75. Parties could simply sit on potential claims, for as long as the employment relationship continued, where there was some dispute or error relating to deductions or payments. Claims would build up, leading to significant forensic, administrative and financial disruption, again, contrary to good administration.

76. By contrast, the reasoning of Langstaff J in Bear Scotland is in accordance with:

a. The ordinary meaning of the word “series”;

b. The intent of article 55 ERO, that claims should be brought promptly;

c. The policy of limitation periods more generally;

d. The overriding objective in rule 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

77. The Claimants’ case that all payments, dating back to 1998 are, in principle, in dispute, should therefore be rejected.

78. It should also be noted that the “3 month gap” rule in Bear Scotland does not operate unfairly, for claimants in the Tribunal who can demonstrate that it was not reasonably practicable to file their claim any earlier. They may still rely on article 55(4) ERO to extend time.

79. In summary, the Respondent submits that:

a. The “3 month gap” rule in Bear Scotland should be applied by the Tribunal, not simply because the decision of Langstaff J is worthy of respect, but because it is right;

b. The word “series” connotes a succession of payments, one after the other, linked. Properly considered, a series of payments in respect of AL which do not comply with the WTD, will be broken by AL payments which do comply with the WTD. For example, where a police officer or staff Claimant did not perform any overtime in the period leading into the AL in question, they do not require any ‘top up’ of the payments in fact made. The payments made in respect of that particular period of AL will have been compliant with the WTD. Compliant payments cannot simply be skipped over in the “series” analysis;

c. Likewise, other types of AL payments, made in respect of the Claimants’ AL going beyond their WTD entitlement, which were properly paid, will also break a series of non-WTD compliant payments.

80. Developing the latter submission further: the limitation period in issue in the “series” analysis is that in article 55(3) ERO [AB42]. The present claims concern only the 4 weeks AL granted by the WTD – not the additional 1.6 weeks AL in regulation 16 WTR (ex 13A) based on domestic law, or the more generous AL paid by the Respondent to police officers pursuant to the PSNI Regulations 2005 and staff pursuant to contract. The Claimants do not contend that payments in respect of the latter types of AL were defective. Hence, for the purposes of the ERO, there were lawful payments of AL and allegedly unlawful payments of AL. Put simply, lawful AL payments will interrupt a “series” of unlawful payments.

81. The Respondent appreciates that this submission may give rise to complexities. The Respondent has never submitted that there is a clear rule or policy which specifies the sequence in which AL is utilised by police officers and staff. The Respondent simply paid the police officer Claimants their salary, overtime and annual leave in accordance with the PSNI Regulations 2005. There was no need to determine which type of AL should be utilised first, until the case law made clear that they were to be paid differently.

82. However, as the Respondent submitted in his written opening submissions: in the absence of a clear statutory or contractual provision governing which type of annual leave is spent by police officers and staff Claimants in what order, it is necessary to identify which particular AL payments are in issue.

83. This question cannot simply be glossed over. Article 15 WTD [AB30] states:

More favourable provisions

84. As summarised in the “Interpretative Communication” on the WTD issued by the EU Commission (see paras. 52 and 57 of the Respondent’s written opening submissions) this means that:

85. There must come a point in an AL year in which the WTD days are spent. It is payments in respect of that AL which are in issue in the present claims. The question of carry-over of AL from the previous year complicates this, but the parties can and should identify when the new annual entitlement refreshes.

86. In Bear Scotland, Langstaff J stated [AB297]:

82 … Regulation 13A is described in the Regulations as “additional leave”. That suggests that the dates of it should be the last to be agreed upon during the course of a leave year.

87. Adopting that logic, the Respondent submits that when AL was taken, police officers and staff used up their minimum entitlement under the WTD first in the AL year, followed by their additional annual leave. Unless there was leave carried over from the previous AL year, in which case, that would be spent first, followed by the WTD leave, and then the additional leave.

88. By contrast, at para. 120 of the Claimants’ opening submissions it is suggested that:

The more logical position is that each Claimant’s leave entitlement is a mixture of his/her regulation 13 entitlement, regulation 13A entitlement and contractual entitlement over and above that. At any time that a Claimant is taking annual leave, he is exercising each of those rights proportionately.

[emphasis added]

89. Whilst that may be the more convenient position, it is not the more logical position. This is, unfortunately, a technical case, concerned with definite AL entitlements, requiring the identification of the payments that are alleged to have been made unlawfully.

90. The concept of a week’s AL is a fixed and familiar one. Recital 5 to the WTD states [AB28]:

“All workers should have adequate rest periods. The concept of “rest” must be expressed in units of time, i.e. in days, hours and/or fractions thereof. Community workers must be granted minimum daily, weekly and annual periods of rest and adequate breaks …”

91. As the CJEU explained in Greenfield v The Care Bureau Ltd (Case C-219/14) [2016] ICR 161, para. 32:

It follows that the entitlement to minimum paid annual leave, within the meaning of Directive 2003/88, must be calculated by reference to the days, hours and/or fractions of days or hours worked and specified in the contract of employment.

92. Four weeks annual leave equates to 20 days, for workers (such as the Claimants) who work 5 days per week with 2 days off in any event. See also reg. 16(2) WTR [AB23]: the maximum entitlement to leave under reg. 15 (4 weeks), plus reg. 16 (1.6 weeks) equals “28 days”.

93. The Claimants’ suggestion, that AL entitlements derived from the WTD can be “mixed … proportionately” with other legal sources of AL, for the purposes of the ERO, is unsound. Rather, the Tribunal should identify the particular WTD payments in issue. These are likely to come towards the start of the AL year, which means there may be a gap of some months before the next exercise of WTD rights in the following AL year.

94. The height of the Claimants’ case is that they were not paid fully in respect of some of their AL. They will therefore have difficulty in identifying a true series of unlawful payments. Again, that is not unfair. The Respondent undoubtedly made AL payments to police officers and staff, in accordance with the law as it was generally understood. It now turns out that some AL payments were non-compliant with the WTD, while others went beyond what the WTD requires.

Interaction with sick leave, maternity leave and service leave

95. Leading counsel for the Claimants’ asked Mr King, during cross-examination on day 3, whether he had considered the reasons why the Claimants referred to in his supplementary witness statement may have had breaks in their overtime or annual leave. Counsel then put that the reason for a break in overtime was important, in order to understand the reason for a gap in an alleged series of payments. It was suggested that it would not be fair to count a gap caused by sick leave, maternity leave, or call up for service, against the Claimants for limitation purposes.

96. This is with respect not a matter for Mr King. And it is a red-herring. The Claimants’ pleaded claims are to the effect that:

a. They have taken AL for the purposes of the WTD; and

b. Pay in respect of that AL did not reflect normal pay, to include overtime and (in the case of staff) certain allowances.

97. If a Claimant has not been performing overtime leading into a period of AL, then there are no additional payments which form part of “normal pay” and which have to be “maintained” during AL. There will be no breach of the WTD.

98. The Claimants do not allege loss of the opportunity to take AL, because of a period of sick leave, as was the case in Stringer, or any other kind of leave. They have not pleaded any discrimination claim, whether in response to the Respondent’s case on limitation or at all. The Respondent submits that there is nothing in the parties’ pleaded cases which requires the Tribunal to find facts as to why overtime was not performed during any particular

period, or why AL was not taken by the Claimants at any time. The claims concern payments for AL in fact taken.

99. In any event, there was nothing to stop a Claimant, who has taken (for whatever good reason) sick leave, maternity leave or service leave, from bringing their claims earlier in respect of past AL payments. Had there been, the Claimants would have been entitled to make an application to the effect that it was not reasonably practicable for them to have filed their claims earlier (article 55(4) ERO). That would plainly be the appropriate route in a worthy case for extending time, rather than requiring the Tribunal to distort the concept of a “series” of payments.

The normal pay of the Claimants

100. It is, with respect, important for the Tribunal to decide matters of principle by reference to the facts, as the Court of Appeal underscored in Patterson v Castlereagh BC:

8 We pause at this stage to observe that in response to this court’s direction, the appellant provided a worked example of how a week’s pay should be calculated if the appellant’s arguments were correct. Counsel for the appellant produced shortly before the hearing a calculation of overtime payments for the purpose of assessing holiday pay over a reference period of 13 weeks. Over that period Mr Patterson had worked 52 hours overtime, his average overtime per week being four hours which in turn gave rise to an average additional pay of £60 per week. It is extremely unfortunate that no such evidence was produced to the Tribunal in this form. This case is a classic example of where a division between liability and remedy can deprive a court of vital evidence which we consider, in the context of this case, would have greatly simplified the determination of the outcome. Attempting to isolate the question of principle without establishing the underlying factual basis has contributed in no small measure to the unsatisfactory outcome of this case. [AB444]

101. In the present case, the Claimants have never particularised their claims as one might expect, notwithstanding it was the Claimants who wished to proceed by way of lead cases

and not preliminary legal points. It is not sufficient to simply include reams of records in the hearing bundle. There are:

a. No particulars of the payments alleged to be defective in each lead case;

b. No particulars of the payments said to constitute a series for the purposes of the ERO;

c. No worked example or schedule of loss. (The summary at [1/535] is incomplete and not explained by any witness evidence).

102. The Claimants should be required to properly particularise the loss claimed in each of the lead claims and the basis for their calculations, and the Respondent should then be permitted to respond.

1 October 2018

JOHN BEGGS QC

Serjeants’ Inn Chambers

London EC4Y 1AE

RACHEL BEST BL

Bar Library, Belfast

AARON RATHMELL BL

Serjeants’ Inn Chambers

London EC4Y 1AE

COUNSEL FOR THE RESPONDENT

[1] Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, consolidating and replacing Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time.

[2] e.g. Letter from Edwards & Co 19.07.17 “We also confirm that we are prepared to adopt the position that the lead cases will be binding in this matter.”

[3] Explanatory memorandum to the WTR 2016, paras. 1–9.

[4] “Calendar year” means the period of twelve months beginning with 1 January in any year: reg. 2.

[5] Subject to case law regarding opportunity to take annual leave and carry-over, see e.g. Sash Window Workshop Ltd v King [2018] 2 CMLR 10.

[6] The CJEU was concerned with the Council Directive 2000/79/EC of 27 November 2000 concerning the European Agreement on the Organisation of Working Time of Mobile Workers in Civil Aviation, but expressly extended their analysis to article 7 WTD.

[7] Interpretative Communication on Directive 2003/88/EC of the European Parliament and of the Council concerning certain aspects of the organisation of working time (2017/C 165/01)”,

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52017XC0524(01), OJ C 165, 24.5.2017, pages 1–58.

[8] Skeleton arguments on the ‘worker’ point dated 28 December 2016 and 23 May 2017 (MTB), and undated c. December 2016 and 30 May 2017 (Edwards & Co).

[9] Subject to regulation 44, “Extension of time limits because of mediation in certain cross-border disputes”, not relevant in the present claims.

1 The Claimants’ opening submissions may have misunderstood the PSNI Service Procedure 34/2006 at core bundle [3/1662]. It surely was not – and it is agreed, could not have been – an agreement to disapply the WTD. It should be interpreted as, simply, confirmation by the Respondent and the Police Federation of NI that the more generous annual leave in the PSNI Regulations 2005 should apply. As at the date of that agreement (August 2006), the WTRs provided for 4 weeks annual leave. There was no reg. 13A (now reg. 16) “additional” leave until October 2007. The minimum annual leave entitlement for PSNI officers was 22 days per year plus public holidays whereas public holidays are counted for the purposes of compliance with the WTD.

2 https://www.judiciary.uk/wp-content/uploads/2015/03/Accompanying-Note-explaining-changes-made-to-holiday-pay-direction-dated-11-December-2014-_2_.pdf

[12] For officers, 1 April to 31 March [3/1648]; for staff, 1 February to 31 January [3/1748].

[13] See also Halsbury’s Laws of England, vol. 74A, para. 116: “The interpretation obligation addressed by European Union law to national courts is to construe national legislation ‘as far as possible’ in such a way as to achieve the result intended by the provision of EU law in question. It has also been expressed as an obligation to apply the interpretative methods recognised by domestic law in such a way as to achieve the result sought by EU law. The interpretation obligation under EU law is, however, limited by the general principles of EU law”, footnotes omitted.

[14] See Bamsey v Albon Engineering, para. 40: there was “no basis for reading Art.7 of the Directive as requiring a broad equivalence of pay for work done, namely overtime, which the employer was not bound to provide under the contract of employment, with payment on annual leave for overtime work not done at all” [AB263-4].

[15] In KHS AG v Schulte (Case C-214/10) [2012] 1 C.M.L.R. 46, the CJEU reconciled employer and employee interests, by qualifying the rights of sick workers to ‘carry-over’ annual leave across consecutive reference periods, on the basis that (para. 30) “A right to such unlimited accumulation of entitlements to paid annual leave, acquired during such a period of unfitness for work, would no longer reflect the actual purpose of the right to paid annual leave”.

[16] For example: Trotter v McGeown International Ltd [2017] NIIT 01815_17IT per Crothers EJ: a pre-hearing review to consider limitation in claims of inter alia unlawful race discrimination and unfair dismissal, reviewing the authorities and noting the difference between the “not reasonably practicable” and “just and equitable” tests; and Woods v Chief Constable PSNI [2016] NIIT 02257_15IT per the Vice President: a case within a multiple claim regarding inter alia part time work and the WTR: “the claimant has not established that it had in any sense not been feasible or impracticable to have lodged a claim within the statutory time-limits…”.

[17] Generous, because it would effectively apply to all officers and staff, who would receive an uplift in their annual leave pay, irrespective of whether additional pay was a normal / regular / recurring feature of their remuneration leading into a particular period of annual leave.

Industrial Tribunals Northern Ireland Decisions

Case No: 112/16 IN THE INDUSTRIAL TRIBUNAL FOR NORTHERN IRELAND

Introduction

The Claims Being Made in These Proceedings in Summary

Why is the Idea of “Normal Pay” Important and What Does it Mean?

Do the Claimants have to show that the level of payment was not generous or otherwise show that the levels of payment inhibited the taking of holidays

The Other Allowances in the Case of the Civilian Employees

If the Tribunal agrees that Overtime (and Allowances) are part of “Normal Remuneration” what rights do the Claimants have to claim this element of their Remuneration that was not, in fact, paid to them?

What is a “Worker” Under EU Law?

Claims under the ERO

Is the Question of 3-Month Breaks Important?

Is the Assumption that Workers Take the 20-days EU Leave First Correct?

The Basis of the Calculation of Holiday Pay

Conclusion

David McMillen QC Peter Hopkins

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Agnew Anderson and others v Chief Constable of the Police (Working Time Regulations) [2018] NIIT 00112_16IT (02 November 2018) URL: http://www.bailii.org/nie/cases/NIIT/2018/00112_16IT.html Cite as: [2018] NIIT 112_16IT, [2018] NIIT 00112_16IT

	January	1200
	February	900
	March	1400
	April	1200
	May	900
	June	900
	July	900
	August	900
	September	900
	October	900
	November	900
	December
²²30 at [552] ²³44 at[287] ²⁴ibid