The government has introduced the Deduction from Wages (Limitation) Regulations 2014 in response to the Bear v Fulton case. The regulations limit unlawful deductions claims to two years before the date the ET1 is lodged. The decision was described by Frances O’Grady as a “blatant attempt to water down last month’s ruling” that overtime should be included in holiday pay calculations.
However, the two year limit will only take effect from 1 July 2015 leaving employees with a window to bring claims before that date where the two year limit will not apply. It is important to remember that the normal rules on a series of deductions will continue to apply therefore backdated claims can only be brought for underpayments forming a series which is not broken by a gap of more than three months between each underpayment.
Pat Harrington of Solidarity Union said: "I would advise workers to file ET1s if they are underpaid holiday pay because overtime has not been included in the calculations. Xmas should provide a good opportunity for this and workers should also claim for backdated amounts of holiday pay at the same time. Remember that the Bear Scotland ruling only applies to the 20 days annual leave entitlement under the Working Time Directive. Any Solidarity member who needs further guidance please e-mail us at firstname.lastname@example.org."