Chief Constable of the Police Service of Northern Ireland and another v Agnew and Others

On appeal by the employers—

Held, dismissing the appeal, (1) that the EU principle of equivalence required that national procedural rules applicable to EU rights should be no less favourable than those governing similar domestic actions; that there was no requirement in the test of equivalence that the claimant had to be within the class of people who could bring a claim under the comparable provision; that the Court of Appeal had been right to conclude that the objective, purpose and essential characteristics of the Employment Rights (Northern Ireland) Order 2016 and the Working Time (Northern Ireland) Regulations 1998 and 2016 were similar, so that claims under article 55 of the Order were comparable to claims under regulations 30 and 43 of the Regulations; that there could be no doubt that the former were more favourable than the latter because of the advantage of the series extension in article 55(3); and that, therefore, the inability of the police officer claimants, pursuing their claims under the Regulations, to benefit from the series extension available to claimants proceeding under the Order infringed the EU principle of equivalence and should be remedied by reading the series extension into regulation 30(2)(a) of the 1998 Regulations and regulation 43(2)(a) of the 2016 Regulations (post, paras 59–60, 67, 70, 72, 78).

Levez v TH Jennings (Harlow Pools) Ltd (Case C-326/96) [1999] ICR 521, ECJ, Preston v Wolverhampton Healthcare NHS Trust (Case C-78/98) [2000] ICR 961, ECJ, Revenue and Customs Comrs v Stringer [2009] ICR 985, HL(E) and Totel Ltd v Revenue and Customs Comrs [2018] 1 WLR 4053, SC(E) considered.

(2) That the broad purpose of the series extension in article 55(3) of the 1996 Order was to provide a measure of protection, against the operation of the short three-month limitation period, for a worker who had repeatedly suffered being paid too little; that the word “series” meant, in the present context, a number of things of a kind following each other in time; that whether deductions constituted a series was essentially a question of fact answered by taking account of all relevant circumstances, including the similarities, differences, frequency, size and impact of the deductions, how they came to be made and applied and what linked them together; that, in the present case, each unlawful deduction in relation to holiday pay was factually linked to its predecessor by the common fault that holiday pay had been calculated by reference to basic pay rather than normal pay, consistently since November 1998; that it was immaterial to that link that the interval between the payments was from time to time in excess of three months, nor was the series of underpayments so linked broken or brought to an end by any correct and lawful payment of holiday pay; and that additional leave provided for by domestic law and by the claimants’ terms and conditions did not have to be treated any differently than the entitlement to annual leave based on EU law, since the source of the entitlement to leave had no bearing on the importance of that leave to workers, who were likely to look at their annual leave entitlement as a composite whole (post, paras 87–88, 90, 127–130, 135–137, 144).

Dicta of Simler LJ in Smith v Pimlico Plumbers Ltd [2022] ICR 818, paras 99–100, CA approved.

Uber BV v Aslam [2021] ICR 657, SC(E) considered.

Bear Scotland Ltd v Fulton [2015] ICR 221, EAT overruled in part.

(3) That, when it was necessary to take a daily rate for overtime forming part of a worker’s pay, in order to calculate holiday pay, it was not appropriate to divide the number of working days in the four weeks’ leave period (20) by the number of calendar days in the reference period (365), as that did not compare like with like; and that what constituted normal remuneration and the appropriate reference period in any case were questions of fact which should be addressed in evidence (post, paras 139–142).

Decision of the Court of Appeal in Northern Ireland [2019] NICA 32; [2019] IRLR 782 affirmed.