Holiday Pay: Could your business be at risk?

Looking out to a damp, dark Manchester morning it is hard to believe that we are now officially in holiday season! Managing leave for your staff is one thing, but have you also considered if you are paying workers correctly when they are on holiday?

The rights surrounding annual leave and holiday pay have been in a state of flux for some years.  This has led to a great deal of uncertainty for employers. In this article, we look at the recent decisions, how they affect holiday payments, and what you need to do to protect your business.

Recap: the law relating to holiday leave and pay

In brief, the right to annual leave and the associated pay is set out in the Working Time Directive, which derives from Europe.  The UK implemented the Directive into the Working Time Regulations 1998 (“WTR”) which provide employees and/or workers with 5.6 weeks entitlement per year, this translates to a basic minimum entitlement of 28 days.  There is no right to bank/public holidays but most employers usually incorporate these 8 days into the 28 day leave entitlement.  Part time workers are entitled to a pro rata equivalent.

Under the WTR the worker is entitled to be paid for the holidays taken using a formula as set out in the Employment Rights Act 1996.

Failure to properly calculate holiday pay could result in an unlawful deduction from wages claim from workers and/or employees.  Importantly, there is a mechanism which allows claims to be brought as a “series of deductions” which can link any underpayments throughout the working relationship. 

The time limit for bringing these claims is 3 months from the date of the last deduction (unless “unreasonably practicable” to do so).

Holiday pay – what to include?

The core principles from the European and national courts are that workers are entitled to be paid their normal pay during periods of annual leave, and that “normal pay” is not limited to basic pay but could include elements such as overtime, commission and allowances.

In 2014 the Employment Appeal Tribunal (EAT) heard the important case of Bear Scotland & Ors v Fulton & Ors (“Bear Scotland”) which decided that some types of overtime should be included in holiday pay.  The case also considered how far back a worker could go when claiming a ‘series of deductions’  

In this case workers tried to claim for underpaid holiday pay stretching back over a number of years.  However, the EAT decided that any period of 3 months or more between the deductions would break the series.   Given that most people have over a 3 month break between holidays, this case had the effect of preventing workers from claiming all the way back to the start of their employment (or 1998 when the WTR were introduced).

Following this decision, the government introduced legislation in 2015 to restrict any claim for underpaid holiday further by imposing a maximum 2 year backstop.

At this stage, a worker would only be able to claim for back paid holidays if they were not subject to a 3 month break, and if there was no break, then they could only go back for a 2 year period.  This significantly reduced the impact of the European cases and was welcomed by businesses.

Current position

Following the Bear Scotland case uncertainty still remained regarding the calculation of holiday pay and what constituted a ‘series’.   The case did not provide any guidance about how to calculate holiday pay where commission/bonuses and overtime are regularly paid to the worker; specifically, what period of time should be referenced to provide an average sum to be incorporated into holiday pay?  Should it be a 12 month or a 3 month reference period?

Questions were also raised about whether the ‘series’ could be broken by making a one off correct payment. 

Last month, the Northern Irish Court of Appeal provided a decision which puts the decision in Bear Scotland under the spotlight and is estimated to cost the Police Force £40 million in backdated holiday pay: The Chief Constable of the Police Service of Northern Ireland & Northern Ireland Policing Board -v- Alexander Agnew & Others. 

In summary, the court decided that police officers’ holiday pay should have included overtime and various allowances and these police officers were entitled to claim for this element of leave, with some claims dating back to 1998 (when the WTR came into force).   This puts the decision in Bear Scotland into question, as there is now doubt whether a period of 3 months or more can break the series of deductions, and therefore limit the period for the claims.  

Comment

The Agnew case is not binding on domestic courts, but this decision could be taken into account when faced with a claim for backdated holiday pay.  Further, given the significant sums involved in this case, it may be appealed to the Supreme Court.  If so, any decision made by the Supreme Court will be binding on all UK courts. 

Importantly, the court did not consider the two year cap on backdated holiday pay claims as provided for in the domestic regulations as they do not apply in Northern Ireland. These regulations are likely to be challenged in the near future as there is some concern that they are not compatible with the Working Time Directive.  

Tips for managing the risk

The is a dynamic and unsettled area of law, but it is now clear that companies must include the relevant allowances when calculating holiday pay.  Whilst some uncertainty remains, there are a number of things businesses can do in order to manage the risk of a future claim for underpaid holidays:

  1. Review your working arrangements – are there any ‘self employed’ contractors who could argue that they are ‘workers’ and entitled to back paid holiday;

  2. Perform an audit of anyone who could potentially be entitled to back pay and perform a calculation of what the financial sum this could look like;

  3. When performing calculations take into account commissions/bonuses/overtime if they are sufficiently regular and are “intrinsically linked” to the work;

  4. If a shortfall in holiday pay is established, act quickly to correct the calculations to ensure that future payments incorporate all relevant entitlements.

  5. Given the complexities in this area, if you have any queries, you should seek specialist advice.

 

Chloe Leyland image

 

 

Chloë Leyland has specialised in employment law since she qualified as a Solicitor in 2007. Chloë has significant experience in presenting and managing employment tribunal cases for both the private and public sector as well as individuals. Chloë’s main areas of expertise include the following: discrimination, redundancy exercises, unfair dismissal, whistleblowing, TUPE transfers and equal pay. 

Email: cle@haroldstock.com


Harold Stock & Co welcome the Vanarama National League North Trophy

Last week, our Stockport office were fortunate enough to receive a visit from members of the Stockport County F.C. Team together with the Vanarama National League North trophy. 

On Saturday 27th April 2019, a 3-0 win at Nuneaton saw Stockport County claim their first league title in 52 years. Their victory was celebrated by over 4000 fans who had travelled to Warwickshire with them. One of those travelling fans happened to be our very own Claire Atkinson. Claire, a specialist Wills and Probate Solicitor is a life long fan of The Hatters. 

Stockport County

(L-R) Tracey Hine, Kelly Jackson, Francesca Rigby, Danielle Eyres, Claire Atkinson, Darren McGuinness


Experienced Residential Conveyancing Solicitor/Licensed Conveyancer

                                                                                                                                               

 

JOB TITLE:                            Residential Licensed Conveyancer/Solicitor

REPORTING TO:                  Head of Department

LOCATION :                           Mossley, Tameside

SALARY:                                 Dependant upon experience

Harold Stock & Co Solicitors is committed to equality and diversity and welcomes applications from all sections of the community.

                                                                                                                                               

Duties include:-

  • Handling a caseload of all types of transactional work, including but not limited to purchases, sales, remortgages, transfers, equity releases, shared ownership transactions, and dealing with registered and unregistered properties, to the required standard of service as set by the Firm.
  • Ensuring use the Firm’s Case Management system to the required standard
  • Bringing to the attention of the Departmental Manager any matters of concern on a transaction that could result in a financial or professional liability to the Firm
  • Undertaking any other tasks reasonably requested by the firm to assist in the progression of transactions from receipt of file to close of the file.
  • Liaising with the administration team and manager to ensure tasks performed and file progressed in a timely manner
  • Contributing ideas to improve client service and departmental performance
  • Contributing ideas for the development of the case management system

PERSON SPECIFICATION

The successful candidate will have:

ESSENTIAL:

  • A minimum of 3 years residential conveyancing experience
  • Proven experience of handling all types of conveyancing transactional work from end to end.
  • Excellent working knowledge and understanding of the CQS procedures and requirements.
  • Ability to work self sufficiently
  • Excellent customer service skills
  • An ability to work with a case management system, databases and normal office IT systems.
  • Ability to work within a team
  • Ability to communicate effectively with fellow employees at all levels of the business
  • A commitment to Equal Opportunities

DESIRABLE

  • A desire to contribute to the overall strategic vision for the department.
  • A desire to contribute towards the effective marketing of the firm.

 To apply for this position, please forward your CV and details of your current package to our Practice Manager, Mrs Alexandra Newman an@haroldstock.com


Experienced Family Law Solicitor

                                                                                                                                                                                                                                         

JOB TITLE:                            Family Law Solicitor/Legal Executive

REPORTING TO:                  Director

LOCATION :                           Mossley, Failsworth or Stockport

SALARY:                                 Dependant upon experience

Harold Stock & Co Solicitors is committed to equality and diversity and welcomes applications from all sections of the community.

                                                                                                                                                                                                                                         

Main duties include:-

  • Handling a caseload of all types of privately funded family law to include divorce and finances, TOLATA, child arrangements and representing clients in Court.
  • Ensuring use of the Firm’s Case Management system to the required standard
  • Maintain up to date knowledge within the specific area(s) of law
  • Exercise financial control of matters in accordance with the standards set by the firm and the Solicitors Accounts Rules.
  • Contributing ideas to improve client service and departmental performance
  • Contributing ideas for the development of the case management system

PERSON SPECIFICATION

The successful candidate will have:

ESSENTIAL:

  • A minimum of 3 years’ post qualification experience as a family law specialist
  • Excellent knowledge and understanding of procedures and protocol
  • Ability to work self sufficiently and to set deadlines
  • Excellent client care skills
  • An ability to work with a case management system, databases and normal office IT systems.
  • Ability to work within a team
  • Ability to communicate effectively with fellow employees at all levels of the business
  • A commitment to Equal Opportunities
  • A desire to contribute to the overall strategic vision for the department.

To apply for this role, please forward your CV together with details of current package to our Practice Manager, Mrs Alexandra Newman an@haroldstock.com

 


Christmas 2018

Our offices will be closed from 4.30pm on Friday 21st December 2018 until 9.00am on Wednesday 2nd January 2019. 

We wish you a very Merry Christmas and a successful New Year. 


Receptionist/Typist

We are looking for an experienced full-time receptionist/typist to join our Stockport office. Full details of the role can be found below. 

To apply for the role, please forward your CV together with a covering letter detailing your salary expectations to our Practice Manager, Alexandra Newman by email an@haroldstock.com 


JOB DESCRIPTION

JOB TITLE:                               Receptionist/Typist

LOCATION:                               Stockport, SK2

DEPARTMENT(S):                   Front of House

SALARY:                                   Negotiable dependant upon experience

Harold Stock & Co. Solicitors is committed to equality and diversity and welcomes applications from all sections of the community


Job Purpose

To provide front of house cover for the Stockport office together with typing cover

Primary Duties and Responsibilities

You will perform a wide range of duties including some or all of the following:

Reception

  • Answer general phone enquiries using a professional and courteous manner
  • Direct phone enquiries to the appropriate staff members
  • Reply to general information requests with the accurate information
  • Greet clients/suppliers/visitors to the organisation in a professional and friendly manner and provide them with refreshments.
  • Maintenance of meeting rooms, ensuing they are kept stocked and tidy before and after all meetings.

Secretarial/Administrative:

  • Audio typing using digital dictation software
  • Copy Typing
  • Maintaining diary systems
  • Liaison with clients and other parties both in person and by phone
  • Assist with the distribution of post
  • Prepare and send outgoing faxes, mail, and courier parcels
  • Filing of documents, ensuring that a high level of accuracy is maintained at all times.
  • Photocopying and scanning.
  • Opening of new files
  • General administrative duties

Person Specification:

The successful candidate will have:

Essential:

  • Previous legal secretarial experience
  • Excellent IT skills including experience with digital audio dictation software and case management systems
  • A keen eye for detail
  • Ability and willingness to learn new skills
  • Ability to work within a team
  • Ability to work flexibly
  • Ability to work to strict deadlines
  • A commitment to Equal Opportunities

Desirable:

  • A full clean driving licence and own car is preferable although not essential

Elf Day 2018

Staff from our offices took part in Elf Day to raise funds for the Alzheimer’s Society. They raised over £340! Well done to everyone that took part.

The highlight of the day for most was the opportunity to Pie Face Paul Stock together with Tom Simpson, Scott Turner-Percy and Claire Atkinson. Unfortunately, Mr Stock wouldn’t allow the moment to be caught on camera but we can assure you it did happen!


Harold Stock & Co show their pedal power for Road Safety Week

We held a Virtual Cycle on 20th November 2018 at our Stockport office to raise funds for Brake, the Road Safety Charity. 

Collectively, we cycled 100.05km and have raised £210 so far. You can still donate to our Fundraising page https://www.gofundme.com/haroldstockvirtualcycl

Special thank to our super cyclists: Tom Simpson, Debra Woolfson, Francesca Rigby,  Kirsty Dunn, Tracey Hine, Danielle Eyres, Wendy Smith, Niamh Darraugh, Scott Turner-Percy, Darren McGuinness and Kelly Jackson. 

 

 


Difficult roads often lead to beautiful destinations

The above quote is often used by bikers to celebrate getting out on the open road and paints a wonderful image, but even the bikers in our team at Harold Stock & Co appreciate that the road is not often the problem; it’s the other road users that can make the destination less attractive.

Whilst bikers are not generally known to complain about the odd knock and the occasional bruise or graze, unfortunately, the shocking figures for last year show that more than 450 bikers ended up in our local hospitals.  The NHS statistics have 75 going to Salford Royal Hospital (where they have a specialist head injury unit), 76 to hospitals under the Pennine Acute Hospital NHS Trust banner, 74 to central Manchester, 68 to south Manchester, 53 to Wrightington, Wigan and Leigh, 39 to hospitals in Bolton, 39 to Stockport and 25 to Tameside and Glossop Trust. 

Although the figures have dropped a bit in the wake of the “Think Bike” campaigns, this may be because more motor cyclists are taking advanced riding tests to protect themselves from others who might not see them on the road, or might not appreciate that braking on a motorbike does not happen quite as it does in a car.

On top of the 319 bikers killed, there are over 5,500 seriously injured and over 13,000 who suffer minor injuries.  We feel that something must be done about these figures.  Whilst in the 40 years that Harold Stock & Co have been helping local people with all aspects of the law, our serious injury team appreciates that bikers are fed up with car drivers suggesting that they “came from nowhere” and were “riding like a bat out of hell”.  In the many claims that we have dealt with, some of which have been rejected by other less specialist teams, the patterns repeat themselves and there are suggestions that bikers should stick to the side of the road, should have braked more quickly (without the inevitable stoppie or lowside) or should not be filtering (which is legal). Despite the fact that you have dipped headlights, a loud can and a helmet brighter than Rossi’s, to make sure you are as visible as possible. 

We are used to working out speeds of impact, preparing site line diagrams, organising reconstructions and gathering the evidence necessary to prove that a collision has been caused by the fault of another, rather than by the biker whose journey has taken him or her to hospital, rather than to the beautiful destination that was anticipated when they started their ride out.

Unfortunately, our local papers are full of motor cyclists being left with life changing injuries when collisions have occurred, even on the less rural roads.  We can’t prevent accidents happening but, in many cases, the term accident is misleading.  If there is an element of fault on the part of the other driver, this is something we will investigate and discuss with you.

We have recently represented a biker who was unfortunate enough to suffer a leg amputation whilst riding to work on our local roads.  As is often the case, he was driving along the main road and the car driver came out of a side road.  Responsibility was initially disputed but, with engineering evidence and detailed witness statements, a large payment on account was obtained to get our client the adapted accommodation that he needed, the prosthetics assistance and the psychological help that allowed him to maintain contact with his family and his young children and to get back to a different, but as fulfilling a life, as before the crash.  His final settlement was a substantial seven figure sum that, with appropriate financial advice, should secure his future.  Whether he or other family members won the argument about spending part of the settlement on a new bike, and adapted prosthetics to allow him to ride again is still unclear! 

If you or a family member has been unfortunate enough to have seen the darker side of motorbike riding, whether you have Solicitors or not, there is nothing lost by giving us a call for a chat.

Kirsty Dunn – Chartered Legal Executive

John Byrne – Accounts Manager & Treasurer of the National Association for Bikers with a Disability (NABD)