The Court of Appeal of Northern Ireland has confirmed in the case of Chief Constable of the Police Service of Northern Ireland v Agnew (and others) that a series of deductions will not necessarily be broken where there is a gap of 3 months between deductions.
The Court found that there was nothing in the Employment Rights (Northern Ireland) Order 1996 (“ERO”) suggesting a limit on gaps between unlawful deductions. It recognised that unlawful deductions can occur at different intervals and in different amounts, provided there is sufficient frequency of repetition in the deductions.
The Court pointed out, however, that it is vital to identify the alleged series. Where there is sufficient similarity of subject matter so there is a factual link between deductions that will be sufficient to amount to a series. This suggests that where there is insufficient factual link, a series could still be broken by a gap of three months or more.
Whilst this decision relates to the Northern Irish law, and is therefore not binding on English Employment Tribunals, it is persuasive. The ERO is identical to its UK equivalent, the Employment Rights Act 1996 and therefore the decision in Agnew could turn out to be very compelling in cases of a similar nature.
Paula Bailey comments:
Employers should take a keen interest in this case. It is likely to be appealed which could result in a Supreme Court ruling that is binding on all UK employers. Depending on how that is decided, it could bring into question the enforceability of the Deduction from Wages (Limitation) Regulations 2014 (SI 3322/2014), which limits back pay claims to two years, resulting in increased liabilities for employers. Should you wish to discuss the implications of this case, get in touch with a member of the team
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