Chief Constable of the Police Service of Northern Ireland (PSNI) v Agnew (Alexander) and Others

CourtCourt of Appeal (Northern Ireland)
Neutral Citation[2019] NICA 32
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Neutral Citation No: [2019] NICA 32
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: STE10946
Delivered: 17/06/2019
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
CHIEF CONSTABLE OF THE POLICE SERVICE OF NORTHERN IRELAND
and
NORTHERN IRELAND POLICING BOARD
Appellants/Respondents:
and
ALEXANDER AGNEW and others
Respondents/Appellants:
________
Before: Stephens LJ, Treacy LJ and O’Hara J
________
STEPHENS LJ (delivering the judgment of the court)
Introduction
[1] This appeal and cross appeal involve consideration of the legal consequences
of an acknowledged failure since the commencement on 23 November 1998 of the
Working Time Regulations (Northern Ireland) 1998 (“WTR (NI) 1998”) by the Chief
Constable of the PSNI (“the Chief Constable”) to pay appropriate amounts of
holiday pay to police constables and police sergeants (“police officers”). Throughout
the period since 23 November 1998 the Chief Constable calculated the amount of
holiday pay by reference to basic salary. He now accepts that he was required but
failed to calculate by reference to “normal paywhich includes both basic pay and
matters such as overtime and various allowances over a reference period prior to the
holiday.
[2] The appeal and cross appeal also involve a similar acknowledged failure by
the Northern Ireland Policing Board (“the Policing Board”) in respect of police
support staff (“civilian employees”).
[3] The acknowledgment relates to the period since 23 November 1998.
However, the WTR (NI) 1998 transposed into national law in this jurisdiction
Directive 1993/104/EC of 23 November 1993 concerning certain aspects of the
organisation of working time (“the 1993 Directive”). Article 18(1)(a) of the Directive
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required that member states adopt laws to implement it by 23 November 1996 but
the United Kingdom did not do so until 23 November 1998. The police officers and
civilian employees have left open their contention that they are entitled to pursue
claims back to 23 November 1996 and not merely to 23 November 1998. However,
the exact date is not an issue which arises for determination on this appeal.
[4] Complaints were presented to the Industrial Tribunal (“the Tribunal”) against
the Chief Constable by 3,380 police officers (“the police officer claimants”) and
against the Policing Board by 364 civilian employees (“the civilian claimants”). The
complaints were under Articles 45 and 55 of the Employment Rights (Northern
Ireland) Order 1996 (“the ERO”) that there had been unlawful deductions from their
pay and in the alternative under Regulation 30 of the WTR (NI) 1998 and under
Regulation 43 of the Working Time Regulations (Northern Ireland) 2016 (“WTR (NI)
2016”) that there have been underpayments of holiday pay. We refer to both of these
Regulations as the WTRs (NI). All of these claims were for the entire period from to
23 November 1996 or from the commencement of service or employment of the
claimants whichever was the latest.
[5] The Appellants state that they have calculated that meeting the claims in
relation to their acknowledged failures over the entire period since 23 November
1998 in relation to the police officer and the civilian claimants would cost
approximately £30 million. The Appellants contend that the recoverable amounts
should be restricted to a period of unlawful deduction/underpayment ending no
later than three months prior to the presentation of the complaints to the Tribunal.
They have calculated that if so restricted the amounts recoverable would be
approximately £300,000.
[6] The parties selected lead cases and the Tribunal recognised that the
determination of the complaints in those cases raised a variety of different points of
law and raised questions as to the jurisdiction of the Tribunal. The Tribunal also
recognised that there were no worked up calculations of financial loss on behalf of
the lead claimants. In those circumstances the Tribunal resolved to deal first with
the legal and jurisdictional issues and thereafter, depending on the outcome of those
issues, determine at a separate hearing what if any award should be made. The
Tribunal then having heard evidence and having received both written and oral
submissions in the lead cases dealt with a number of preliminary issues in its
detailed and comprehensive judgment dated 2 November 2018. In essence the
Tribunal substantively determined those issues in favour of both the police officer
and civilian claimants in effect permitting claims back to 23 November 1998.
[7] The Chief Constable and the Policing Board appealed to this court though the
issues raised by their appeals are not identical. The police officer and civilian
claimants have cross appealed but again the issues raised by their cross appeals are
not identical. There were numerous grounds of appeal and cross appeal some
overlapping and some not pursued. At the conclusion of the hearing the parties
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provided a “Joint Note on the Remaining Issues on the Appeal.” Those are the
issues which we will consider and determine.
[8] In this judgment we will refer to the Chief Constable and to the Policing
Board by those names or as “the Appellants. We will refer to the police officer
claimants and the civilian claimants by those terms or as “the Respondents.”
[9] Mr Beggs QC with Ms Best and Mr Rathmell appeared on behalf of the Chief
Constable and the Policing Board. Mr McMillan QC and Mr Hopkins appeared on
behalf of the police officer and civilian claimants. We are grateful for the assistance
of both sets of counsel.
The Remaining Issues on the Appeal
[10] We set out the remaining issues as jointly identified by the parties in their
note to the court subject to some amendments which we have made.
(A) The meaning of “Worker” in the ERO. Is a police officer claimant a
“worker” within the meaning of article 3(3) of the ERO so that he or she can
present a complaint under the ERO for unlawful deductions from pay rather
than having to present a complaint for underpayment of holiday pay under
the WTRs NI?
(B) The application of the EU principle of Equivalence. In the alternative to (a)
if police officer claimants are not “workers” within the ERO, does the
principle of equivalence require that they must be treated as being entitled to
the remedy provided by Article 55 of the ERO for unlawful deductions or
does it require that the remedy provided by Regulation 30 of the WTR (NI)
1998 and Regulation 43 of the WTR (NI) 2016 must be applied to afford a right
to present a complaint with regard to a series of underpayments of holiday
pay?
(C) The meaning of “a series of deductions.” If a claim is being made with
regard to a series of deductions as set out at Article 55(3) of the ERO, is the
series ended, as a matter of law, by a gap of more than 3 months between
unlawful deductions and/or by a lawful payment or is the question of what is
a “series” a question of fact to be decided on the facts of each case? Does the
Court approve the formulation by Langstaff J in paragraphs [79]-[81] of Bear
Scotland Limited v Fulton [2015] ICR 221?
(D) Is annual leave entitlement to be taken in a particular sequence? When one
is seeking to ascertain whether there has been an unlawful deduction from
pay under the ERO or underpayment of holiday pay under the WTRs (NI), is
one required to assume that the 4 weeks paid leave mandated by Regulations
13 and 16 of the WTR (NI) 1998 Regulations 15 and 20 of the WTR (NI) 2016 is
taken first and exhausted before the worker draws on any entitlement under

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3 cases
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    ...research, Mr Craig referred me to the decision of Chief Constable of the Police Service of Northern Ireland and anor v Agnew and ors 2019 NICA 32, a decision of the Northern Ireland Court of Appeal declined to follow the ruling of the EAT in Bear Scotland on this point. The case involved cl......

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