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Two cases to watch out for in 2023…

By January 26, 2023Employment

There are a number of employment law areas where we expect to see a big impact this year. Two of the key areas we have identified are in relation to holiday pay and also serial grievance raisers. These are explained below: 

Holiday pay

It has been the case ever since the Bear Scotland ruling in 2014 that a gap of at least three months would break a “series of deductions” for the purposes of claiming holiday pay. In practice, this means that if a worker is underpaid holiday pay for a time period giving rise to a claim, followed by correct payments for at least 3 months, this breaks the earlier “series of deductions” resulting in the claim arising from the underpayment being out of time. 

However, in 2019 it was decided by the North Ireland Court of Appeal in the case of Chief Constable of the Police Service in NI and others v Agnew that the decision in Bear Scotland was wrong. In particular, this case held that a series of deductions is not broken by a gap of three months or more or by lawful payments. The impact of this case meant that thousands of people could recover in the region of £40 million in underpaid holiday pay. 

While this Northern Ireland decision is not binding in England, it can be considered as a persuasive argument. In another well-known case which has considered holiday pay (Smith v Pimlico Plumbers), the Court of Appeal expressed an opinion that the Agnew decision was correct. The UK Supreme Court is now considering the issue and its judgment is anticipated in early 2023. 

If the UK Supreme Court agrees with the decision in Agnew, it means that the decision will be binding in the UK and will pave the way for workers being able to claim for underpaid holiday pay up to two years previously. As things currently stand, employers can rely on the Bear Scotland decision to limit their underpaid holiday pay liabilities but this may be set to change. 

Repeated grievances

Many employers will at some stage come across “problematic” employees who have a habit of complaining and raising grievances repeatedly.  

In the case of Hope v British Medical Association, the EAT had to consider at what stage it becomes reasonable to draw the line and either refuse to consider yet another grievance where they’ve all previously been unsuccessful or potentially dismiss the employee. 

In this particular case, the employee was dismissed after having raised seven grievances over 13 months. The EAT decided that the employer had acted reasonably and fairly in dismissing him and it was relevant that the employee had not cooperated with the grievance process which had undermined the relationship between him and his line manager. 

This decision has been appealed to the Court of Appeal which is due to be heard later in 2023. It is hoped that decision may offer guidance to employers faced with this situation in deciding how to handle employees who are “serial complainers” in bad faith or out to cause trouble. 

Our Employment team will continue to keep you updated on developments but please do not hesitate to contact the team at should you wish to discuss further. 

For more employment law updates, check out our other articles!

Nicola Clarke

Author Nicola Clarke

Nicola is a solicitor specialising in employment law and HR matters, advising both businesses and individuals on all aspects of these areas.

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