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Fulton -v- Bear Scotland

22 May 2017

Fulton v Bear Scotland

In Fulton and Another v Bear Scotland Ltd UKEATS/0010/16/JW, the Employment Appeal Tribunal (EAT) has confirmed that the previous EAT decision which determined that a gap of more than three months between non-payments or underpayment of wages (including holiday pay) broke a ‘series’ of deductions for the purpose of bringing an unlawful deduction from wages claim was binding. The Employment Tribunal was right not decide it was bound by the initial appeal decision.

Case history

This is the latest decision in the series of holiday pay appeals. The EAT decided in an earlier appeal involving Bear Scotland and that any payments received in relation to non-guaranteed overtime which employees were required to work counted when calculating holiday pay for the purpose of the first 20 days’ annual leave in a year under the Working Time Directive. Mr Justice Langstaff also decided that a gap of more than three months between deductions of wages broke the chain in a ‘series’ of deductions in relation to a claim for unlawful deduction of wages. The Bear Scotland case was then remitted to the Employment Tribunal where Mr Justice Langstaff’s decision was applied. It dismissed the claims (or parts of claims) where more than three months had passed between successive non-payments or underpayments of holiday pay as being time-barred.

Current Appeal

Although they had not appealed against the decision of Mr Justice Langstaff, the claimants appealed to the EAT arguing that the decision of Mr Justice Langstaff in relation to the 3-month gap was not binding on the Tribunal; it only created a strong presumption that the claim was time-barred. The EAT dismissed the appeal thus providing an endorsement of the reasoning of Mr Justice Langstaff's judgement.

Carl Fender

22 May 2017

Carl Fender