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Holiday Pay: The Latest Instalment

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Was the employment tribunal right to consider itself bound by the earlier EAT decision in Bear Scotland that a break of more than three months between non-payment or underpayment of wages breaks the series of deductions?

Yes, held the EAT in Fulton v Bear Scotland.

Readers may recall the EAT, in Bear Scotland & Ors v Fulton & Ors (2014), held that more than three months between an underpayment of holiday pay broke the 'series of deductions' preventing the employment tribunal from having jurisdiction to consider claims relating to earlier underpayments. The case was sent back to the employment tribunal to apply the law to the facts.

The employment tribunal considered itself bound by the EAT's ruling and excluded claims where more than three months had passed between successive non or underpayments of holiday pay. The Claimants appealed, seeking to argue that the EAT's finding on the 'break the series' point was not sufficiently material to the decision.The Claimants said that the three month rule 'would lead to arbitrary and unfair results.'

The EAT disagreed, holding that "it is clear that the relevant passages of [Langstaff P's] decision form part of the ratio decidendi of the judgment". None of the exceptions which would permit this EAT to depart from the earlier decision in the same case applied. Absent the employment tribunal having erred in its application of the law to the facts, the second appeal could not succeed.

Thanks to Devid Leslie of Lyons Davidson for preparing this case summary.