| In the recent case of Deksne v Ambitions Limited, the Respondent conceded that it had paid the Claimant’s holiday pay incorrectly. The Claimant claimed unlawful deductions from wages. The Employment Tribunal held that the deductions were out of time as they were not a ‘series’ of deductions. This decision was reached following the Employment Appeal Tribunal’s decision in the case of Bear Scotland v Fulton, and before the decision of the Supreme Court in Chief Constable of the Police Service of Northern Ireland v Agnew. There were gaps of over three months between some underpayments.
The EAT, overturning the tribunal’s decision, held that whether deductions of wages constitute a series is essentially a question of fact, answered by taking account of all relevant circumstances including the similarities, differences, frequency, size and impact of the deductions, as well as how they came to be made and applied and what linked them together. The tribunal had fallen into error by taking account of the fact that the interval between the payments was, from time to time, in excess of three months. All the Claimant’s holiday pay underpayments based on the same calculation were part of a series of deductions and within the jurisdiction of the tribunal (going back to the beginning of the two year backstop set out in s23(4A) Employment Rights Act). The EAT, applying the decision in Jafri v Lincoln College (that there was just one possible decision that a tribunal could reach once the EAT had corrected the misdirection), substituted a finding of unlawful deductions from wages. |
