Two recent legal cases on holiday pay could mean that UNISON members may have claims for underpayment if they did not receive their normal pay when on annual leave – but members need to act now.
In the first – known as the Lock case – the European court ruled in favour of a UNISON member who argued that paid annual leave should include commission payments if these were part of normal pay.
And recently, the Employment Appeal Tribunal (EAT) ruled in another case that overtime payment should be included in holiday pay if members are required to work overtime regularly.
The EAT took the UNISON Lock judgement into account when it reached its decision.
Both cases referred to the European Working Time Directive, with its guarantee of paid leave, and the judgements only apply to the statutory leave entitlement.
Both issues may affect members who have been underpaid in the past when taking leave and UNISON will support members who have a claim.
But as with all tribunal cases, there are strict time limits for when a claim must be submitted: for these cases it is three months, less one day, from the date of the last alleged underpayment following a period of statutory annual leave.
The union has created a special CASE form for members who may have a claim for underpayment of holiday pay in light of these two rulings, which branches and activists can download from the internet.
UNISON will only be able to help members if they complete and sign the CASE form, including the fee agreement part. And decisions are subject to an assessment of the legal merits.
To help branches and reps, the union has sent a legal briefing on EAT decision on overtime to regions for forwarding to branches.
There is also a Q&A document on UNISON’s Lock case (commission), which is available on the UNISON website.
Bargaining advice for branches on negotiating around the issue is also being prepared and will be available shortly.