Mr J Gallagher v Advocate General for Scotland — 2017

At the preliminary hearing on 22 March 2017, Mr Gallagher clarified that he was not bringing a disability discrimination claim. He said the £617.14 issue arose from a financial retention incentive payment. The tribunal found as facts that he had received £12,716.99 net in October 2015, that the payment was repayable if he left before July 2018, that he left the Armed Forces in November 2016, and that he repaid the corrected balance of £12,176.99 after the Ministry of Defence identified an error. The additional £617.14 had been deducted from his final salary, and the MOD later wrote off that balance and arranged to refund it to him electronically.

The tribunal held that it had no jurisdiction to hear the claimant's s.23 ERA 1996 unlawful deduction claim. It noted that section 13 ERA 1996 did not assist him, and that although section 191 ERA 1996 gives some Crown employees rights under the Act, the section 192 extension that would apply those rights to members of the Armed Forces had not been brought into force. On that basis, claims under Part II ERA 1996 could not be brought by service members, and the unlawful deduction claim was disposed of on jurisdictional grounds.

The claimant's remaining holiday pay issue was not finally determined at this hearing. The tribunal noted that he could not pursue that claim under Part II ERA 1996, but that it might be capable of being brought under the Working Time Regulations 1998. That issue was continued to a further preliminary hearing on 3 May 2017, with the parties asked to update the tribunal if it was resolved in the meantime.