UNISON Northern Ireland

Agnew: Underpayment of Wages

AGNEW: UNDERPAYMENT OF WAGES

 

UNISON’s successful involvement in the Agnew case at the UK Supreme Court means that you may have a claim against your employer if you work regular overtime or are in receipt of other payments like commission pay, or bonuses; and these payments are not included in your holiday pay.

 

Please read the EXPLANATORY NOTE at the bottom of this page to identify if you may have a claim.

 

What do I do now?

 

  • If you think you may have a claim, please complete the short questionnaire at the following link and we will assess your claim.

           

            https://survey.alchemer.eu/s3/90651365/d87412a01031

 

  • If you have further questions and concerns, please contact UNISONdirect on 08000 857857.

 

Please be aware that UNISONdirect will be unable to provide you with legal advice. Please ensure that you have read the explanatory note carefully before contacting UNISONdirect.

 

  • The consultation closes at 5pm, 11 March 2024.

 

  • You only have 3 months less one day to bring a claim. If your employer pays you correctly, say on 1 January, you will only have until 31 March to bring a claim. Legal time limits are normally strictly applied in legal claims. It is important that members look out for their employer suddenly correcting their holiday pay as this may ‘start the clock’ on the 3-month time limit.

 

  • No claim will be brought on your behalf until we review your claim and confirm in writing that you have a claim.

 

  • Please note that UNISON’s ‘4 Week Rule’ has been waived for all new joiners with a potential claim on this issue. In normal circumstances UNISON’s rules state that you will only be entitled to the full support available to any member of UNISON, up to and including full representation in formal meetings and legal advice, if you have been a member for 4 weeks (unless this is for a 'pre-existing issue'). This ‘4 Week Rule’ rule has been waived for all new joiners with a potential claim.

 

 

 

AGNEW: UNDERPAYMENT OF WAGES

EXPLANATORY NOTE

 

SUCCESS AT THE SUPREME COURT

 

Many UK workers may be entitled to thousands of pounds unfairly taken from their pay following a landmark Supreme Court ruling in a successful challenge brought by UNISON.

The case was between police workers (officers and staff) and their employer: the Northern Ireland police force. Formally titled Chief Constable of Police Service of Northern Ireland v Agnew, the case was about underpayment of holiday pay over a period of 25 years. (https://www.supremecourt.uk/cases/uksc-2019-0204.html)

UNISON intervened, led arguments at the UK Supreme Court and the workers won.

The Supreme Court agreed with us that gaps of three months or more would not break the chain between underpayments. This now means that workers in Northern Ireland can make back-dated claims for indefinite periods of underpayment, and workers in Britain can also make back pay claims, but only going back up to two years.

 

HOW DO WORKERS IDENTIFY UNDERPAYMENTS?

 

People need to check their pay slips and see whether any element of pay has not been reflected in their holiday pay. If someone does regular overtime and this hasn’t been reflected in holiday pay, or you receive commission pay or bonuses that also haven’t been reflected, this could mean you have a claim.

Every worker is entitled to a minimum of 5.6 weeks paid annual leave. Some contracts may say employees get more than that. If, week on week, you do overtime and get bonus payments, and that isn’t included in holiday pay, you may have a claim. In the police service case, they all did regular overtime and that wasn’t included in their holiday pay.

Another way this might be identified is if you see that your employer suddenly corrects your holiday pay.

Please complete the survey if you believe this applies to you.

https://survey.alchemer.eu/s3/90651365/d87412a01031

 

FAQ’s

 

Q. Is there a time limit to bring a claim?

Time limits in the employment tribunal are usually strictly applied. Employment law requires that claims for unlawful wage deduction are brought within 3 months of the last deduction. For example, if the last deduction is made on the 20th of March, a claim has to be brought by the 19th of June. Therefore, you must act quickly and notify your relevant UNISON branch, in the first instance, if you think your claim is almost out of time.

 

Q. Does this apply to me?

 

  1. E.g. I am a health care worker who works a contracted 37.5 hours per week, plus 3 hours’ worth of overtime weekly throughout the year. When I take paid time off, my holiday pay reflects my basic rate of pay, i.e. 37.5 hours per week. Might I be entitled to make a claim?

 

  1. Yes. As the overtime is regular and not reflected in your holiday pay.

 

  1. E.g. I am a catering staff member. I work overtime during infrequent after work events and at Christmas. Am I entitled to make a claim?

 

  1. Unfortunately, it is unlikely that your overtime would be considered regular and therefore you will not have a claim.

 

  1. E.g. I work part-time and am contracted to work 20hrs per week. However, I often work 5 -10 additional hours each week which is paid at my basic hourly rate and not overtime rates.  When I go on annual leave I only get paid my basic rate of pay of 20hrs. Am I entitled to make a claim?

 

  1. Yes, you may have a claim. If your overtime is meant to be paid at the basic rate under your contract and is regular, your holiday pay should reflect your actual hours worked at the basic rate. 25-30 hours at the basic rate in this example.

 

  1. E.g. As part of my role I am required to be on stand-by and/or on-call each week.  I get paid an on-call/stand-by allowance in addition to my contracted hours.  When I go on annual leave I only get paid my contracted hours and not the on-call/stand-by allowance. Am I entitled to make a claim?

 

  1. Again, if the on-call/stand-by is regular, you may have a claim arising from your holiday pay underpayment.

 

  1. E.g. I am health care worker who works a contracted 37.5hrs per week. Most weeks I do additional hours for my employer on a bank contract.  When I take annual leave I get paid on my contracted hours but not my banking hours.  Do I have a claim?

 

  1. Unfortunately, no.  Your banking work is separate from your substantive contract, and you will therefore not have a claim.

 

  1. E.g. I retired a few years ago. Before I retired, I regularly did overtime.  Am I entitled to backpay?

 

  1. Unfortunately, no. The time limit in place means that it will be more than 3 months from your last unlawful deduction. Therefore, your claim is out of time.

 

Q. How far can this be backdated to?

 

Northern Ireland is unique in this circumstance. The pay can be backdated indefinitely.

 

Q. What is meant by regular overtime payments?

 

Specifically, overtime payments must be regular for you to have a claim. It has been suggested that payments need to be broadly regular and predictable.

 

Q. What about enhanced payments for working weekends and unsociable hours?

 

Yes, you may have a claim if you receive enhanced payments for working weekends and unsociable hours, and this is not reflected in your holiday pay.

 

Q. Are any other kinds of pay included?

 

It can also apply to maternity and paternity pay, commission pay, bonus pay or even one-off payments made by the employer for trade union activities. These payments do not have to be regular.

 

Q. What if I do not accept the amount offered in the event of a settlement.

 

If UNISON achieve a settlement, and you do not accept the terms, you will be free to take on your own claim at your own expense.

 

 

 

UNISON’S POSITION

 

UNISON may need to get your claim into the Tribunal (issue protective proceedings) to ensure your claim is lodged in time, or where it is appropriate.

 

FURTHER QUESTIONS

 

If you have further questions and concerns, please contact UNISONdirect on 08000 857857.

 

Please be aware that UNISONdirect will be unable to provide you with legal advice.

 

Please ensure that you have read the explanatory note carefully before contacting UNISONdirect.