Mr A Battan and others v Lloyds Bank plc and others: 2200055/2018
| Jurisdiction | England & Wales |
| Judgment Date | 08 February 2019 |
| Citation | 2200055/2018 |
| Date | 08 February 2019 |
| Published date | 15 February 2019 |
| Court | Employment Tribunal |
| Subject Matter | Working Time Regulations |
Case No: 2200055/2018 and others
10.2 Judgment - rule 61
“.
EMPLOYMENT TRIBUNALS
Claimant: Mr. A. Battan and others
Respondents: (1) Lloyds Bank plc
(2) IBM United Kingdom Limited
(3) TSB Bank plc
Heard at: London Central On: 19, 20 November 2018
Before: Employment Judge Goodman
Representation
Claimants: Mr D. Barnett, counsel
Respondents: (1) Mr J. Cavanagh QC
(2) Mr T. Richards, counsel
(3) Ms E. Misra, counsel
PRELIMINARY HEARING
JUDGMENT
1. The interruption of three months or more in a series of unlawful deductions
is not unlawful as interpreted by the CJEU in King v Sash Windows.
2. In respect of UK law on interruption of a series, the Tribunal is bound by
the Employment Tribunal decision in Bear Scotland.
3. The two year limitation on arrears of unlawful deduction claims introduced
by the Limitation Regulations 2014 does not breach the EU principle of
equivalence.
REASONS
1. This hearing was to decide test issues on how far back claims for underpaid
holiday can go.
Case No: 2200055/2018 and others
10.2 Judgment - rule 61
The Facts
2. The parties had agreed a statement of facts. The claimants were all originally
employed by Lloyds Bank, the first respondent. In 2014 TSB was split from
Lloyds to promote competition in retail banking, and those staff are now
employed by TSB, the third respondent. In 2017 other Lloyds staff transferred
under TUPE to IBM, the second respondent. There are 374 claims against
Lloyds, 15 against IBM and 85 against TSB.
3. The underpayments arise because additions to basic pay for overtime, critical,
standby and call-out rates, were not counted for holiday pay. When it was
established in British Gas Trading v Lock (2017) ICR 1, following earlier
decisions of the European Court of Justice, that normal remuneration for holiday
pay should include additional payments, Lloyds negotiated a settlement with the
two trade unions it recognised for collective bargaining, effective 1 November
2017, by which it agreed to enhance holiday pay going forward by 8.3% to cover
the additional payments. Lloyds also agreed to pay one year’s arrears.
4. These remaining claims are by members of a third trade union Affinity, which until
2015 was recognised by Lloyds, but no longer. Their holiday pay has been
increased to include additional payments, effective from 1 September 2017 (IBM)
and 1 November 2017 (Lloyds and TSB), but there is a dispute about payment
for earlier years.
The Issues for this Hearing
5. Proceedings in most of the claims were stayed by Presidential order of 15 March
2018, leaving seven test cases. Mr. Damaa and Mr. McSporran claim against the
first respondent, Mr. Travis and Mr. Battan against the second respondent, and
Ms Knox, Mr Jackson and Mr Constable against the third respondent.
6. The issues for this hearing were identified at a case management hearing on 16
April 2018. They are:
(1) whether, in the light of King v The Sash Window Workshop Ltd
(2018) IRLR 142 (C-214/16), the ruling in Bear Scotland v Fulton (2015)
ICR 221 (EAT), to the effect that a gap in underpaid holiday of more than
3 months interrupts the series of deductions, is still good law;
(2) whether the ruling in Bear Scotland as set out above is correct,
having regard to section 23 Employment Rights Act 1996. The claimants
concede that the Employment Tribunal is bound by the statutory
construction in Bear Scotland, but will wish to raise this issue on any
subsequent appeal;
(3) whether, in the light of King, the two-year backstop contained in
subsection 23(4A) Employment Rights Act, introduced by the Deductions
from Wages (Limitation) Regulations 2014, is still good law, in so far as it
applies to holiday pay claims like the present;
(4) the answer to (3) is “no”, whether the claims can go back to November
1996, October 1998, 6 years from the date of presentation of the
respective claims, or some other date.
7. On question (4), the parties are now agreed, in the light of Coletta v Bath Hill
Court (Bournemouth) Property Management Ltd UKEAT/0200/17, that
because section 9 of the Limitation Act, setting a six year time limit for claims in
contract, does not apply if there is another statutory limitation period, if the
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