Zadzwon do ACAS po porade, bo w 2016 byla sprawa, ktora zakonczyla sie postanowieniem, ze nadgodziny sa wliczane do przyslugujacego urlopu, a na szybko to znalazlam:
Holiday Pay should now include payments:
for contractual results-based commission (other types of commission it’s not clear!)
guaranteed, compulsory overtime
non-guaranteed, compulsory overtime if this is regularly worked (irregular is not clear!)
possibly for voluntary overtime,
possibly performance bonuses,
possibly some allowances (e.g. travel allowances, travelling time payments, perhaps standby and on-call allowances too, that form part of ‘normal remuneration’
.
Employees who wish to claim for holiday pay they believe they may be owed would need to make a claim for an ‘unauthorised’ deduction of wages to an Employment Tribunal.
The current decisions (including the October 2016 Court of Appeal decision in Lock) only apply to the first 4 weeks of holiday (that is guaranteed under EU law). It does not apply to the ‘additional’ 1.6 weeks leave that is granted under UK law. The EAT said that it is likely that a worker will take his ‘core’ 4 weeks statutory holiday first and the additional 1.6 weeks last (unless the employer specifies something different). Therefore the ‘core’ 4 weeks holiday can be paid at a different, enhanced, rate to the ‘additional’ 1.6 weeks holiday (unless Employers wish to equalise the payment to save administrative headaches!). How complicated!
It is probable that only current workers and recent leavers could make a Tribunal Claim (as tribunal claims normally must be bought within 3 months of the underpayment/deductions). This 2014 Bear Fulton decision limited the claims for historic underpayment by saying that if there is a gap of more than 3 months between a series of ‘unlawful deductions’ then this ‘breaks’ the chain – so if a worker has a 3 month gap between holidays they will only be able to claim for the last ‘deduction’ (underpayment of holiday pay). It is also conceivable that a worker will have a gap of more than 3 months between taking the remainder of their ‘core’ 4 weeks entitlement in one holiday year and taking some of the ‘core’ 4 weeks holiday entitlement in the next year. This means that the majority of claims could be limited.
Employees (claimaints) in the Bear v Fulton decision are appealing this 3 month limit to the Employment Appeal tribunal, which is likely to be heard later in 2016; the EAT decision in May 2017 confirmed that ‘legacy’ pay claims are limited by a gap of 3 months between successive underpayments (this may yet be appealed!).
One question not answered by the Bear Fulton 2014 EAT decision is how far holiday pay claims can go back if there has not been a gap of 3 months between holiday pay payments that have been made. This was answered in December 2014 when the Government announced they would take action to reduce potential costs to employers – by introducing the Deduction from Wages (Limitation) Regulations that impose a 2 year limit on back pay for claims to Employment Tribunals for unlawful deductions from wages related to holiday pay. This is effective from 1st July 2015.
Remember, workers, not just employees, are included in this. In King v Sash Window Workshop Ltd – Mr King worked as a salesman on a commission-only basis for 13 years, but was not paid if he took holiday as SWWL considered him self-employed. When Mr King reached 65, in 2012, his contract was terminated and he successfully claimed age discrimination and holiday pay at an Employment Tribunal in 2013 because he was a ‘worker’. This case went to the EAT and then to the Court of Appeal in February 2016 – who were to decide whether he was entitled to pay in lieu, on termination, for untaken leave going back to 1999 (leave he did not take but would have been entitled to take). The CoA has reserved judgement and referred the case to the ECJ – you can read more details about the ECJ decision here.
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