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Practice Direction published for holiday pay claims
The President of the Employment Tribunals has recently issued a Practice Direction on handling claims for underpaid holidays following the EAT’s judgment in Fulton and another v Bear Scotland Ltd, which held that payments for non-guaranteed overtime must be taken into account when calculating such pay.
The Practice Direction allows a Claimant who has already submitted a holiday pay claim to apply to amend their claim to include further claims for underpayment arising after the presentation of the original claim, instead of submitting an entirely new claim.
From a Claimant’s point of view, this will help to overcome one of the stumbling blocks left by the Fulton decision. The EAT ruled that a ‘series of deductions’ would be broken by a gap of 3 months or more, meaning that a Claimant who suffered continued underpayments would need to submit a new claim every 3 months to avoid breaking the chain of underpayment. This would mean incurring a further Tribunal fee on each application. The Practice Direction suggests that a Claimant will not need to submit a new claim, but can amend their original claim, without the requirement for a further Tribunal fee to be paid.
In order to make an application to amend, a Claimant must apply to the Tribunal in writing, making reference to their existing case details and setting out their amended particulars of claim. Their application must also be copied to the Respondent (employer) who will then be invited to provide written comments or objections. Whilst there is no right to have a claim amended, any application will be considered by an Employment Judge in accordance with the usual principles.