Since our earlier briefings on holiday pay claims, a number of employers have attempted to limit their liability for back pay by including additional money for holiday pay in workers’ pay, hence the recent tribunal…………
This triggers the time limit for claims with the effect that many claims may go out of time. Where this has been done by a large employer like a local authority, you will already have received advice from UNISON Midlothian.
If your pay now includes an element of additional pay, the time for bringing a claim will have started from the date on which you were last underpaid holiday pay. If there are more than three months since the last time holiday pay did not include additional sums, then you will be unable to pursue a claim.
The branch will be sending out a more detailed briefing very soon, but you should contact us now if you think you are running out of time because your employer has made additional payments for past underpaid holidays.
URGENT! “NORMAL PAY FOR HOLIDAYS” CLAIMS
Lock v British Gas Trading Ltd (CJEU)
On 22nd May 2014 UNISON member Joe Lock was successful in his claim against British Gas. The Court of Justice of the European Union found that a worker’s annual leave pay should include commission payments if these were part of normal pay. The Employment Tribunal will now decide how UK law will be interpreted in light of this decision. It is likely that whatever decision is reached by the ET will be appealed through the higher courts so it may be a long time before any payments are received.
UNISON Midlothian has asked the council what they intend to do about the Lock decision. We think they MAY make additional payments from the August pay date and want to reach a collective agreement.
How to claim
If you are regularly given payments for time or activities at work that are not paid when you take annual leave (non-contractual overtime, additional hours, out of hours working, night working, standby etc) you should consider making a claim. UNISON will then see if your employer owes you any back pay and assess if a legal claim has any prospects of success.
CLAIMS MUST BE MADE WITHIN 3 MONTHS OF THE LAST PAYMENT OF UNDERPAID HOLIDAY PAY. YOUR EMPLOYER HAS STARTED PAYING OR IS ABOUT TO START INCLUDING ADDITIONAL PAYMENTS IN YOUR HOLIDAY PAY. TIME LIMITS MAY APPLY IN YOUR SITUATION.
If you think you may have a claim then please complete a case form and hand it into the UNISON office for submission to the lawyers.
‘NORMAL PAY FOR HOLIDAY’ CLAIMS
On 22 May 2014, UNISON member Joe Lock was successful in his claim, Lock v British Gas. The Court of Justice of the European Union (CJEU) found that a workers 20 days statutory annual leave pay should include commission payments if these were part of normal pay.
The Employment Tribunal will decide how UK law will now be interpreted in light of this decision. It is likely that whatever decision is reached by the Employment Tribunal will be appealed through the higher courts, so it may be a long time before any payments are received.
If members are regularly paid payments for time or activities at work that are not paid when they take annual leave (e.g. commission payments, other supplements, bonuses or overtime payments) then there may be entitlement to increased holiday pay in future and back pay.
We have written to all the employers, where we have members, and asked what they intend to do in relation to unpaid holiday pay in respect of additional payments during working time. Midlothian Council have already responded that they are currently considering the matter and are in contact with colleagues in the Employer team at CoSLA, who are preparing advice for all Councils. We
are still waiting for responses from our other employers. On a national level UNISON is collating responses from employers and will then decide a strategy on how best to pursue claims.
What you need to do
If you think you may have a claim, contact the branch office. This will allow us to keep you up to date on your employers response and on UNISON’s claim strategy. You should ensure that you keep your contact details up to date. The easiest and quickest means of contact is through email. Don’t worry if you don’t have an email address as we will still write out to members if required.
You should contact the branch immediately
If your employer stops making the payments for commission, other supplements, bonuses or overtime pay.
Your employer starts paying any unpaid commission, other supplements, bonuses or overtime pay during annual leave.
Email: email@example.com Tel: 0131 654 1129