Fulton and Others -v- Bear Scotland and Others

The Bear Scotland case above, which concerned inclusion of non-guaranteed overtime payments in the calculation of 20 days’ annual leave, returned to the Employment Appeal Tribunal recently.

The question referred was whether the finding in the original judgment, that a break of more than 3 months between non-payments or underpayments broke the chain in a series of such deductions, resulting in claims being time-barred, was binding.

The Employment Appeal Tribunal found that this aspect of the previous ruling was binding and rejected the Claimants’ argument that the previous finding was not “sufficiently material” to the previous decision to be regarded as such.

Therefore, it is possible for employers to argue that if there is a break of 3 months or more between holiday payments which were not calculated in accordance with the original judgment, then any Tribunal claims relating to underpayments prior to the break are time-barred.  Employers should also remember that in respect of any Tribunal claims for underpayment of holiday pay lodged after July 2015, that these are limited to 2 years’ arrears in any event.