The full report of the landmark decision laid down by the EAT in Bear v Fulton (and the other conjoined cases) has now been published and, in summary, the main findings are:
- That the decision of the CJEU that "the purpose of the requirement for leave is to put the worker during such leave, in a position which is, as regards remuneration, comparable to periods of work" was clear and a further reference to the CJEU was not required in this instance and therefore "non-guaranteed"overtime that is regularly worked should be included in calculations for holiday pay as part of "normal remuneration".
- That the UK government may have to look at adjusting the provisions of the Working Time Regulations 1998 to distinguish between the way in which holiday pay is calculated for the basic 4 weeks' leave granted under the Working Time Directive, and the additional 1.6 weeks (the right to which arises from a domestic policy decision).
- Very importantly, the Judge also considered the issues of how far back claims for unlawful deductions from wages could be made and said: "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."
This finding will limit the ability of workers to make claims for backdated holiday pay where there has been a gap of more than three months between payments in any alleged series of deductions.
The Business Secretary, Vince Cable, has announced plans to set up a new Government taskforce to assess the impact of the decision.
We will issue an additional update if this decision is to be appealed further.