Mr J McMahon v Represented by Mr M Cain – Solicitor Contraflow Ltd — 2019

At the preliminary hearing on 18 October 2019, the respondents applied for the claim to be sisted pending the outcome of Chief Constable of the Police Service of Northern Ireland v Agnew and others. Employment Judge R Gall refused the sist application, holding that it was appropriate for the preliminary hearing to proceed because delay would be avoided and Agnew would at most provide a strong indication, rather than a determinative answer, on the holiday pay time-bar issue.

The tribunal then dealt with time bar. The parties were agreed that the claimant had been absent from work on sick leave between January 2014 and October 2014 and that there had been no underpayment of holiday pay during that period. They were also agreed that the claim had been presented in January 2015 and that, applying Bear Scotland Limited v Fulton and another 2015 ICR 221, any alleged underpayments more than three months before December 2014 were time-barred.

Mr Cain accepted that Bear was binding on the tribunal and that claims prior to December 2014 fell to be treated as time-barred. The tribunal recorded that there was no evidence or argument that it had not been reasonably practicable to present the claim within three months of any deduction prior to December 2014. On that basis, the claims for the period prior to 25 December 2014 were dismissed for want of jurisdiction.

The tribunal noted that the case could now proceed in respect of the elements of claim relating to the period in and after December 2014. No merits decision was made on those later claims at this hearing, and no monetary award was recorded.