We report on the latest development in the claims for underpaid holiday, and the decision that non-guaranteed overtime should be included in the cases going under the banner Bear Scotland v. Fulton.

The Bear case was one of a group of 3. The others were Hertel (UK) v. Woods & others and AMEC Group v. Law & others. We recently reported that these cases would be the subject of an appeal.

The main point being appealed was the decision that, wherever there is a gap of more than 3 months between underpayments, back-claims cannot be brought beyond the 3 months.

Leave to appeal the Bear case itself was refused, so this will no longer be progressing.

Leave to appeal the other cases (Hertel and AMEC) was granted, but the Union backing the appeal (Unite) has just announced that they will not be pursuing an appeal to the Court of Appeal in these cases.

Implications

When it announced that it would not be pursuing the appeals, the Unite spokesman said “We do not want to bankrupt businesses”. This would appear to be the reasoning behind what we at Springhouse would see as an otherwise highly appealable point.

The situation for businesses is therefore a good one, because they will generally not be liable for back-payments where there is a gap of more than 3 months between deductions in non-guaranteed overtime cases. It is important to take advice if you are a company thinking of limiting repayments, however, as the facts of each case will need careful scrutiny.

We cannot see that this will remain unchallenged, but for the time being the 3 month rule is good law.

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