Mr. M Brettle and others v Dudley Metropolitan Borough Council — 2018

The tribunal heard a reserved 5-day hearing on jurisdiction and liability in holiday pay claims brought by 43 council employees. The case concerned whether certain payments, including additional voluntary overtime and call-out or standby payments, had to be included when calculating holiday pay under the Working Time Regulations 1998 and the Employment Rights Act 1996. Remedy issues were listed but were not determined in this judgment.

On jurisdiction, the tribunal held that it was bound by Bear Scotland v Fulton on the series-of-deductions point and accepted that the amended claims for the 22 claimants identified in paragraph 27 were out of time because the last alleged deduction or failure to pay was more than three months before 18 April 2016. It rejected the argument that it was not reasonably practicable to present those amended claims earlier, finding that the delay resulted from the claimants' solicitors' decision not to amend until the final hearing. The tribunal applied the Dedman principle and concluded that the claimants were fixed with the consequences of that failure.

The tribunal also considered Agnew, but did not treat it as displacing Bear Scotland on the issues before it. On the merits, it held that Wood, Willis and Cree worked regular additional voluntary overtime so that those payments had to be taken into account for holiday pay purposes. It found that no claimant worked regular call-out or standby payments for the same purpose, and that the other claimants' voluntary overtime was too limited and intermittent to amount to normal remuneration. No remedy was quantified in this judgment, and the hearing on remedy was left to a later stage.