British Airways Plc v De Mello & Ors

These appeals relate to the statutory holiday pay entitlement of members or former members of British Airways Cabin Crew. They raise issues relating to the principles governing the calculation of normal pay for these purposes and as to the time limit for tribunal claims asserting underpayment. I will refer to the parties as they are in the employment tribunal, as claimants and respondent.

During the relevant period the respondent had a complex pay system providing for multiple allowances that supplemented Cabin Crew’s basic pay in various respects or circumstances. Issues arose as to which of these allowances should be reckoned in to holiday pay. Starting in 2007, multiple group claims were initiated supported by the Unite the Union. At the end of 2013 the bulk of the multiple claims were settled and a new pay regime was implemented. The six present claimants, however, did not compromise their claims, and so they continued to a full merits hearing.

That hearing took place at Watford in February 2019 before Employment Judge R Lewis. The six claimants were represented by Mr K McNerney, the respondent by Ms Barsam, both of counsel. In his reserved decision the judge made findings as to which particular allowances that were at issue should, in principle, have been reckoned in to the calculation of holiday pay, for which claimants and in respect of which years. This was subject to what he called “limitation and series” points – that is, points relating to the time limit for bringing such claims. The reasons included the judge’s decision on the law relating to such points. The judge envisaged that a remedy hearing would follow at which further issues relating to the determination of each claimant’s precise award would be addressed.

Live before me were four grounds of challenge on the part of the respondent, three on the part of all six claimants, and one further ground on the part only of one claimant, Mr Ardabili. The hearing of this appeal had previously been delayed or postponed, on account of the impact of the pandemic, ill health of counsel, and to await the outcome of the Supreme Court appeal in Chief Constable of the Police Service of Northern Ireland v Agnew [2023] UKSC 22; [2024] ICR 51.

At this hearing Ms Barsam of counsel again represented the respondent. Ms Newbegin had, at an earlier stage, been instructed to represent all six claimants. But she now represented four of them: Mrs De Mello, Ms O’Dwyer, Mr Texeira and Mr Ardabili. I had skeleton arguments from both counsel which included their updated submissions in light of Agnew. The other two claimants – Mr Duffy and Mrs Kerr – are now litigants in person. Mr Duffy attended the appeal hearing in person and Mrs Kerr joined on the link. They both expressed agreement with Ms Newbegin’s submissions and arguments, but they both also relied upon a supplementary skeleton argument that had been put in Mr Duffy, and they both made their own additional oral submissions.

At the start of the hearing I considered a number of matters that had been raised by Mr Duffy, on behalf of himself and Mrs Kerr, in the run-up to the hearing. Applications by them to amend the live grounds of appeal, including by reintroducing grounds originally raised in their notices of appeal, but which had not been permitted to proceed to a full hearing, were refused for reasons I gave orally. I also explained that this appeal hearing was solely concerned with consideration of the eight live grounds of challenge to the employment tribunal’s 2019 decision; and that the EAT did not have a general power to investigate, or grant relief in relation to, other matters that were concerning them.

In discussions at the start of the hearing, a running order and indicative timetable for oral submissions in relation to both the respondent’s and the claimants’ challenges was agreed. I am grateful to all concerned for their co-operative approach, which enabled the hearing of this matter to be completed over the course of the two days allocated to it.

Council Directive 2000/79/EC (the Air Crew Directive) gave effect to the so-called European Aviation Agreement, clause 3 of which is materially the same as that of the Article 7 of the Working Time Directive 2003/88/EC. Both require Member States to take the measures necessary to ensure that the relevant workers are entitled to paid annual leave of four weeks in accordance with conditions laid down by national legislation or practice. Underpinning these provisions are Articles 31 and 47 of the EU Charter of Fundamental Rights, the latter of which provides for the right to an effective remedy in respect of rights and freedoms guaranteed by the law of the Union. It was not in dispute before me that the claimants can continue to rely upon these rights as directly effective, because they began their claims prior to so-called IP completion day on 31 December 2020.

Regulation 4 of the Civil Aviation (Working Time) Regulations 2004 provides:

Regulation 18 provides, in material part:

Claims asserting that an employee has been underpaid in respect of statutory annual leave may be brought pursuant to regulation 18 and as claims for unlawful deduction from wages pursuant to Part II Employment Rights Act 1996. It is not disputed that this applies in respect of the 2004 Regulations, just as HMRC v Stringer [2009] UKHL 31; [2009] ICR 985 confirms that it applies in respect of the Working Time Regulations 1998. This means that the claimants may invoke the time-limit provisions for wages claims set out in section 23 of the 1996 Act. The starting point in section 23(2) is a three month-time limit from the date of the deduction. But section 23(3) provides, in relevant part, that where a complaint is brought in respect of “a series of deductions”, then the reference to “the deduction” is to the last deduction in the series. The present claims pre-date the introduction, in 2015, of a two-year back-stop on the overall period covered by a given claim.

Unlike the Working Time Regulations 1998, which contain detailed provisions relating to the calculation of pay in respect of periods of leave, the 2004 Regulations make no such provision.

In British Airways v Williams (Case C-155/10); [2012] ICR 84 (CJEU) and [2012] UKSC 43; [2012] ICR 1375 ) (SC) the claimants were British Airways pilots to whom the 2004 Regulations applied. They received fixed annual basic pay and two variable supplements, being a flying pay supplement (FPS) and a time-away-from-base allowance (TAFB), each calculated at an hourly rate. Questions were referred by the Supreme Court to the CJEU. The particular issues that arose were explained by Lord Mance JSC (for the Court) in the second decision of the Supreme Court. He noted at [5] that “British Airways explains that TAFB was ‘introduced to replace meal allowances, sundries and the Gatwick duty allowance’ and ‘to be increased in accordance with the UK Retail Prices Index for Catering-Restaurant Meals.’ The Revenue and Customs’ attitude is that the TAFB is over-generous and that 18% of it is taxable, in effect as pure remuneration.”

As discussed at [7] – [8], when the matter had first reached the Supreme Court, it was of the view that it was likely that the 2024 Regulations could be construed so as to reflect the meaning of the Directive. On that scenario, British Airways made a submission that “the only constraint imposed by the Directive was that pay during annual leave must not be so low as to prevent or inhibit the taking of leave.” It also submitted that the fixed annual basic pay was “sufficiently comparable to remuneration received while working to satisfy the requirement for paid annual leave.”

Against that backcloth the questions referred to the CJEU included, after an overview question about the requirements of EU law, the following:

The Advocate General opined at [43] that the case law on the Working Time Directive is equally applicable to clause 3 of the European Agreement. In a section concerned with the principles established by the case law in relation to “[c]ontinued payment of remuneration during the period of leave”, she went on to consider the judgment in Robinson Steele v R D Retail Services Limited (Joined cases C-131/04 and C-257/04); [2006] ICR 932, including the following observation.

A further section headed: “Conclusion: holiday pay may not be calculated by reference to the minimum subsistence requirement” included the statement at [53] that it would be incompatible with the Court’s case-law, if “holiday pay were calculated solely by reference to an amount which is just enough to ensure that the worker is not prevented from exercising his right to paid annual leave”, because that would not constitute “maintenance of remuneration”, among other problems.

In her conclusion, at [90] she said, in part, this:

The Court concurred that the principles applicable to the Working Time Directives were transposable to the European Agreement [16]. It continued, at [20] – [26]:

The Court concluded at [31]:

When the matter returned to the Supreme Court Lord Mance, for the Court, observed at [9] that the Court of Justice had given a “compendious answer” to the questions posed to it. At [10] he observed that the CJEU’s reasoning “makes clear that it was ruling against British Airways on questions (2), (3) and (5)(a)”, citing what the Court has said at [20] and [21] of its judgment. He went on to cite from the succeeding paragraphs that I have set out. He then made this observation at [12]:

Further on, at [18], Lord Mance described how the submission for the pilots was now that holiday pay should include basic pay, FPS and 18% of TAFB, whereas British Airways submitted that the whole of TAFB should be excluded.

In a concluding section he went on to hold that HMRC’s view was irrelevant, as it was at best a third party’s view “on an issue to be determined independently by the employment tribunal” [28], and, at [30], that British Airways’ statement, cited by him at [5], was just its statement of its position; and that “it must be for the employment tribunal to consider and determine upon what basis TAFB was agreed and paid during any relevant period.” He then said this:

The TAFB issues were accordingly remitted to the employment tribunal.

In Lock v British Gas Trading Limited (Case C-539/12); [2014] ICR 813 the employee was engaged in sales and received a basic salary together with commission on sales received, paid in arrears, and which accounted for more than 60% of his total remuneration. The tribunal referred questions to the CJEU concerning whether the Working Time Directive required domestic law to make provision for holiday pay to reflect the commission entitlement, and, if so, in what way.

At [19], after a review of the authorities, the Advocate General opined that the purpose of payment during leave “is to put the worker, during such leave, in a position which is, as regards remuneration, comparable to periods of work: Williams, para 20 and the case law cited.” Further on, at [31] – [33], he observed that the commission “does in fact constitute remuneration for the work Mr Lock has carried out himself. The commission is therefore directly linked to the worker’s own work…”. Though it fluctuated it was a “constant component of his remuneration” and so an “intrinsic link” did exist between the commission and the performance of his tasks. The Court of Justice, at [20] – [24], adopted this same analysis.

In Dudley Metropolitan Borough Council v Willetts [2018] ICR 31 (EAT), another 1998 Regulations case, the issue was whether payments for wholly voluntary overtime should be reckoned part of normal remuneration for holiday pay purposes. They would not have fallen into account under the domestic regime, but as the Directive was directly effective in that case, the issue turned on the meaning of the Directive. That led in turn to a consideration of Williams and Lock on the basis that the same principles applied to the Working Time Directive and the Air Crew Directive.

Simler P, as she then was, reviewed the opinions of the Advocates General, and decisions of the CJEU, in Williams and in Lock. She also noted that in Bear Scotland Limited v Fulton [2015] ICR 221 the EAT (Langstaff P) had concluded that Article 7 required pay in respect of non-guaranteed (but, where required by the employer, compulsory) overtime to be reckoned in to holiday pay.

Simler P described at [31] – [32] how counsel for the employer submitted that Williams and Lock established that, for a payment to count as part of normal remuneration there must be an intrinsic link between the payment and the performance of tasks that the worker was “required to carry out under his contract of employment.” In the instant case, in relation to wholly voluntary overtime, this link was missing. At [33], referring to the submissions of counsel for the employees, she said:

Simler P preferred the employees’ counsel’s submissions. EU law required “normal (not contractual) remuneration to be maintained. The overarching principle means that payments should “correspond to the normal remuneration received by the worker” while working. She continued

Accordingly, the tribunal had not erred in considering that voluntary overtime pay “if sufficiently regular and settled” would form part of normal remuneration.

In Flowers v East of England Ambulance Service NHS Trust [2019] EWCA Civ 947; [2019] ICR 1454 the Court of Appeal upheld a decision of the EAT that Article 7 required holiday pay to include both non-guaranteed and voluntary overtime. Bean LJ, after reviewing the authorities, was disposed simply to adopt Simler P’s analysis in Willetts. However, consideration was needed of a more recent decision of the CJEU in Hein v Albert Hozkamm GmbH & Co Kg (Case C-385/17); [2019] 2 CMLR 19 which contained a passage which, it was contended, meant that overtime would not fall to be taken into account if it was not compulsory. But ultimately he concluded that the Court had not contradicted what it had said in Williams. Accordingly Willetts was correctly decided. Asplin LJ gave a concurring judgment and Nicola Davies LJ agreed with both the other judgments. Although Hein was cited in her skeleton argument, Ms Barsam indicated in oral submissions that, in light of Flowers, she did not rely upon it. So I do not need to see anything more about it.

Having heard argument by reference to the foregoing authorities in particular, the tribunal set out a number of principles that it drew from them:

The tribunal went on at [67] to add some “general findings”, including the following:

The respondent’s four grounds of appeal all relate to the tribunal’s conclusion that meal allowances are in principle to be included for the purposes of calculating statutory holiday pay. I will set out in full the relevant passage in the tribunal’s decision:

The headline challenges raised by the four grounds of appeal are in summary as follows.

Ground 1 contends that the tribunal applied the wrong legal test. In particular it contends that the test set out by the Court of Justice in Williams is that components of remuneration which are intended exclusively to cover occasional or ancillary costs do not need to be taken into account in the calculation of holiday pay. This required the tribunal to focus on the genuine intention of the respondent. However, it is said that the tribunal failed to do so, and instead focussed on the potential effect of meal allowances and the need for, or reasonableness of, the payments, including erring by giving substantial weight to the “generous” effect of the allowance.

Ground 2 contends that the tribunal erred in relation to the burden of the proof. The onus was on the claimants to show that meal allowances should be counted as part of normal pay and hence holiday pay. Instead the tribunal erred, it is said, by requiring the respondent to prove that meal allowances were intended exclusively to cover costs, and so were not part of normal pay.

Ground 3 contends that the tribunal failed to give adequate reasons. In particular it refers to the evidence of one of the respondent’s witnesses, Mr Ayres, that meal allowances were paid to reimburse subsistence costs. It asserts that the tribunal did not explain whether it rejected that evidence, or, if it did, why. The ground also lists a number of factual findings said to have been supportive of the respondent’s case. It is said that, in light of those findings, and if the burden did fall on the respondent, it is unable to understand on what basis it was found not to have discharged it.

Ground 4 contends that the tribunal ignored relevant evidence and took into account irrelevant evidence in relation to meal allowances. Particular features of the evidence are identified.

The jurisprudence of the Court of Justice establishes that the overriding principle is that holiday pay must reflect normal pay. There are then two components to the test of whether a given type of payment or allowance forms part of normal pay. The first relates to what I will call the nature of the payment and the second is what the EAT in Willetts at [20] called a temporal component.

As to the first component, the general test propounded by the Advocates General, and adopted by the Court of Justice, in the foregoing authorities, is that the payment will be of the requisite nature if it is “intrinsically linked to the performance of the tasks which the worker is required to carry out under his contract of employment”. Willetts explains that the key test is whether the payment is in fact linked to the “performance of the tasks”, so that it does not matter whether the activity which triggered the payment was originally mandated by the contract of employment or was something (such as voluntary overtime) that the employee agreed to do ad hoc.

The discussion in Willetts postulates that there are two ways in which the jurisprudence of the Court of Justice can be read in this regard. One (preferred by Simler P) draws on the fact that the Court noted that it was also established in earlier authorities that what it calls compendiously payments relating to “professional status” are also included in holiday pay. Simler P postulated that this demonstrates that, while meeting the test of being “linked intrinsically to the performance of the tasks” is sufficient, there are other routes by which the component relating to the nature of the payment could be satisfied. The alternative analysis, discussed at [46], is that the “intrinsic link” test is in fact satisfied by the carrying out of voluntary overtime, because the duties or tasks carried out are in either case the same, and, even if ad hoc, are still performed under the umbrella of the contract.

Either way, it seems to me that the underlying rationale – which is that holiday pay should reflect normal pay – is to be treated as satisfied if the payment concerned is compensation for performing the duties or tasks of the job, so long as the temporal test is also satisfied. Thus, in Lock at [32] the Court said: “In the case in the main proceedings, as the Advocate General’s Opinion, the commission received by Mr Lock is directly linked to his work within the company. Consequently [my emphasis] there is an intrinsic link between the commission received each month by Mr Lock and the performance of the tasks he is required to carry out under his contract of employment.” This underlying rationale also, I am inclined to think, explains why what the Court calls “professional status” payments satisfy what I have called the nature test. These are payments triggered by factors which are thought to justify some additional or higher reward for doing the job.

Paragraphs [24] and [25] of the Court of Justice’s decision in Williams must be read as a whole. As the opening words of [25] – “By contrast” – indicate, the Court was identifying a principled distinction between two scenarios. Either the payment is “linked intrinsically to the performance of the tasks”, or it is not, but is, instead, a payment in respect of “costs”, which “need not be taken into account.” But, the general test stated in the answer given by the Court, at [31], was simply that the pilot is entitled to “all the components intrinsically linked to the performance of the tasks”.

Thus when the matter returned to the Supreme Court, Lord Mance identified at [12] that the Court of Justice had drawn a distinction between “on the one hand” remuneration for all activities undertaken during employment, and, “on the other hand” payments to cover occasional or ancillary costs. The passage beginning at [28] of his speech then took up the specific issue relating to TAFB. In the first sentence of [30] he formulated the test as requiring attention to be focussed on “the real basis on which the TAFB payments were made” and whether they were “made genuinely and exclusively to cover costs”. The discussion at [31] indicates that the answer will not turn on a detailed analysis of whether the payment is set at a level which is needed or reasonable; but nevertheless there may be cases where the payment is so high, that this fact is treated as undermining the employer’s case that the payment was genuinely and exclusively intended to cover costs.

Two salient points emerge. The first is that there is a single issue for the tribunal in such cases. What is the real basis of the payment? Is it a performance payment or was it made genuinely and exclusively to cover costs? The second is that the Court of Justice, and, following it, the Supreme Court, eschew the approach taken by HMRC to such issues, of hypothecating a percentage or proportion of such an allowance as being a performance payment and a percentage or proportion as being an expenses payment, by making some general assessment or adjudication of what would be a reasonable amount to allow. Rather, either the payment is one side of the line, or it is the other.

As to the burden, the overall position is that this is on the worker who asserts that a payment forms part of normal pay to show that it does. But, as so often, the tribunal is unlikely to need to resort to the burden of proof to decide the issue. Whether the payment is a performance payment or an expenses payment should be decided by the tribunal by identifying all the relevant facts and circumstances (from whichever source the evidence came), and then standing back and assessing the overall picture, including by drawing appropriate reasoned inferences from the primary facts, in order to decide which side of the line the given payment falls. The worker will no doubt highlight those features argued to support the conclusion that it is a performance payment, and the employer those argued to support the conclusion that it is an expenses payment; but the tribunal’s task is to weigh and assess the overall picture painted by all the relevant facts and circumstances.

Lord Mance’s observation at [31] should be seen in this context. The fact that a payment is in a fixed amount is not as such fatal to the conclusion that it is an expenses payment. But if, in the given case, it is at a very high level that is “obviously” not wholly required to cover expenses, that may be treated as decisively tipping the scales in favour of the conclusion that the real basis on which it has been made is that it is a performance payment. But I note that the answer in such a case is not for the tribunal to split or apportion the payment. Rather, the employer may avoid this conclusion by bringing the level of the payment down below such a very high level.

I turn, then, to the respondent’s challenges to the present tribunal’s conclusion in relation to meal allowances. I have already set out the relevant passage in the decision at [70] – [88].

Paragraphs [71] to [78] are the material findings of fact. Paragraph [79] refers to a submission to which the tribunal is going to return. Paragraphs [80] and [81] refer to evidence, which, it may be inferred, the tribunal accepted, in so far as it was evidence of fact, as opposed to comment. The first part of paragraph [82] is, I think, directed clearly to the temporal component of the test, and unsurprisingly concludes that this was met in relation to these allowances.

Then the tribunal comes to its final conclusions. These are plainly guided by its earlier self-direction as to the law. At [66.7] it directed itself that, for an allowance to count towards normal pay, an intrinsic link to performance is critical. But it went on at [66.9] to postulate that certain payments are “excluded”, such as allowances “intended to cover occasional or ancillary costs arising at the time of performance.” Thus the tribunal appears to have regarded payments of the second kind as forming an excluded subset of payments of the first kind. This appears to me to be why it did not regard its conclusion at [82], that meal allowances were intrinsically linked to the performance of duties, as determinative, and went on also to consider whether they fell within what it regarded as the occasional-or-ancillary-costs exclusion. This is also why, although its overall starting point at [67.1] was that the burden of proof “rests on each claimant individually to show that each allowance is part of his or her normal pay”, it considered that the burden of proof fell on the respondent to show that meal allowances fell within what it regarded as the “exclusion” from performance payments.

The first part of [83] appears to indicate that the tribunal considered that the mere fact that the payment was set at a generous level would not preclude such a finding. Paragraph [84] poses a problem, and paragraph [85] cites what the tribunal understands to be the particular test it should be applying, but neither contains any dispositive reasoning. Paragraph [86] and [87] then state the tribunal’s conclusion that meal allowances are “in principle” included because the respondent has failed to discharge the burden on it. Paragraph [88] then indicates that the tribunal considers that a further and final step is required, being to determine whether the whole of the meal allowance is to be taken into account, or, if not, what proportion.

It seems to me that the tribunal did fall into error, by proceeding from the analysis that expenses payments are an excluded sub-category of performance payments, to the reasoning that the burden of proof was on the respondent to show that these payments were expenses payments, and then to deciding the issue on the basis that the respondent had failed to discharge that burden. Overall, respectfully, the tribunal’s approach was too rigid and compartmentalised. As I have described, the tribunal’s task was to weigh all the relevant facts and circumstances, in order to decide which side of the line these particular allowances fell. In particular, when considering whether the payments were intended exclusively to cover expenses, the tribunal was not confined to considering evidence, such as it was, coming from the respondent’s witnesses, as to what was in the minds of those involved in the creation or maintenance of the scheme. Rather, it could and should have considered what proper inference could be drawn from the overall constellation of relevant facts, including other factual features that might be said to support a proper inference in relation to that question, and from wherever the evidence in support of those facts came.

Ms Newbegin reminded me, of course, of the familiar and long-established guidance in the authorities, such as in this passage in RSPB v Croucher [1984] ICR 604 at 609G – 610A:

However, in the present case, the tribunal made a principled error in its approach to how it determined the issue. While it set out relevant findings of fact at [71] to [78], because of the approach that it took, which led it to dispose of the issue on the basis that the respondent had failed to discharge the burden on it, it failed to engage in the process of weighing and assessing the overall picture painted by the factual mosaic, in order to decide on which side of the line these allowances fell. There were plainly a number of those factual features that the claimants contended supported their analysis, and a number that the respondents contended supported their analysis. But because of the way that it approach and determined the issue, the tribunal failed to engage in a substantive assessment of these.

Ms Newbegin highlighted the tribunal’s observation at [79] “…if I find that it contains an element of windfall (which seems inescapable)”. She submitted that the words in brackets showed that the tribunal considered that this case fell into Lord Mance’s category at [31] of cases where it was “obvious” that the payments were not going to be required, in their entirety, to match actual costs, so rendering untenable the respondent’s contention that they were genuinely and exclusively intended to cover costs.

However, there is no express reasoning or finding in this decision to that effect; and I do not think that it can be inferred that this was the reasoning which led the tribunal to its conclusion. Apart from the fact that, if this was what the tribunal concluded, it could have been expected expressly to say so, there are the following further difficulties. First, I agree with Ms Barsam that the observation, as such, that the meal allowance contains “an element of windfall” does not, in itself, point to that conclusion, particular given that it is clear that the fact that an allowance is in a fixed amount does not, in itself, necessarily preclude it from being treated as an expense allowance. Secondly, in its dispositive reasoning the tribunal seemed to take on board that very point at [83].

Thirdly, the sense of what Lord Mance says in the opening words of [31] is that one could not preclude there being an extreme case of the type described in the first two sentences, where the result would be obvious. But the sense is that the possibility of there being such cases is not reflective of the general approach to be taken, which is then set out in the remainder of that paragraph. If the present tribunal considered that this case indeed fell into that exceptional category, this is a further reason why it needed to spell it out. Further, while the tribunal set out, at [85], extracts from [28] – [31] of Lord Mance’s speech, highlighting certain passages, it did not highlight this particular passage. Finally, it seems clear, to repeat, that the tribunal ultimately decided the matter simply on the basis of the application of the approach that it took to the burden of proof.

For the foregoing reasons I uphold ground 2 and will allow the respondent’s appeal. I have noted that, in the grounds of appeal, the respondent highlights certain features of the facts or evidence that it contends were necessarily relevant or irrelevant, or particularly compelling. But it will be for the tribunal to make that assessment for itself. I cannot rule out, for example, that a feature relating to what the respondent characterises as the effect of meal allowances might be considered by the tribunal to contribute something to what it can infer was the “real basis” on which they were paid. It will also not be necessary for the tribunal to comment in its conclusions on every last factual feature to which either party attached significance, so long as it explains which features it regarded as particularly significant, and how it came to its overall assessment of them and conclusion.

Before leaving the respondent’s appeal, however, there is one further aspect that needs to be addressed. This concerns the conclusion at [87] that meal allowance is “in principle” included in holiday pay but, at [88], that whether the whole, or what proportion, of it is to be taken into account must then be determined. At [25] the tribunal indicated that this was a matter on which there needed to be further submissions, at a further remedy hearing. This suggests that the tribunal did consider that some further exercise was required to evaluate whether the full amount of the payment was reasonably required to cover the cost of a meal, or only some designated proportion of it. If so, that would be the very thing that the Supreme Court indicated it should not be drawn into.

Accordingly, I allow the respondent’s appeal; and the question of whether meal allowances did or did not form part of normal pay must be remitted to the tribunal for fresh determination.

There are four grounds of appeal or cross-appeal from the claimants, the first three raised by all six of them, and the last one by Mr Ardabili only. I will stick with the ground numbers that they have inherited from how matters unfolded on the way to the full appeal hearing: 4, 5, 8 and 9.

Ground 4 contends that the tribunal erred in concluding that the respondent was in law entitled to, and did, designate the first 20 or 28 days of a given holiday year as statutory (as opposed to contractual) leave days; alternatively that decision was perverse. Particulars of perversity are given.

Ground 5 contends that the tribunal erred by interpreting a “series” for the purposes of section 23(3) of the 1996 Act as being broken where the time gap between two deductions was more than three months. There is a further issue as to the precise scope of this ground, to which I will come.

Ground 8 challenges the tribunal’s conclusion that commission on duty free sales should not count as part of normal pay, as it was highly unlikely that not including it would have any deterrent effect on an employee taking annual leave. That is said to be inconsistent with the reasoning of the CJEU as adopted by the Supreme Court in Williams [2012] UKSC 43; [2012] ICR 1375.

Ground 9 contends that the tribunal erred in concluding that so-called Back-2-Back allowance should not count as part of normal pay for Mr Ardabili for the reference year 2008-2009, by failing to disregard the fact that for the first seven months of that year he was not entitled to that allowance.

It is convenient to start with ground 5.

The tribunal, at [39.3], considered itself bound by the decision of the EAT in Bear Scotland v Fulton [2015] ICR 221, that a gap between two successive deductions of more than three months would break the series. Subsequently, in Agnew the Supreme Court ((Lord Kitchin and Lady Rose, the other Justices concurring) held that this was an error, and that there is no such principle.

Doctrinally, by virtue of section 41(2) Constitutional Reform Act 2005, Agnew, which is a decision of the Supreme Court on appeal from the Northern Ireland Court of Appeal (NICA), is to be regarded as a decision of a court of Northern Ireland. However Ms Barsam sensibly indicated that she accepted that, one way or another, in light of Agnew I should not regard myself as bound to follow Bear Scotland, and should instead treat Agnew as an authoritative statement of the correct position on the point in respect of section 23 of the 1996 Act (to which the decision makes copious reference). Ms Barsam therefore accepted that I should hold that (though it was bound to follow Bear Scotland at the time) the present tribunal had erred in applying what I will call a three-month rule.

Ms Newbegin submitted that, in light of Agnew, not only must the tribunal’s conclusion at [39.3] accordingly fall, but also its conclusion at [39.4], that “[t]his approach applies to each claimant’s claim for each allowance separately”. It also followed, she contended, that the matter should return to the tribunal on the basis that, as there was no “three-month rule”, and as all of the deductions which the claimants claimed were deductions from holiday pay, all of the occasions in respect of which the tribunal concluded that a given claimant had not received the proper amount of holiday pay should be treated as part of an unbroken series.

Ms Barsam submitted that ground 5, as framed, was confined to a challenge to the tribunal’s conclusion at [39.3], not its conclusion at [39.4]; and in any event [39.4] was not wrong. While it has now been held that there is no three-month rule, whether two or more payments form part of a single series is a fact-sensitive matter in each case. Ms Barsam accepted that the authorities establish that two successive deductions do not have to be “contiguous” to form part of a series – that is they do not have to be from immediately consecutive wage payments, and the chain will not be broken by intervening lawful payments, as such. Nevertheless, she argued, it is for the appreciation of the tribunal whether two deductions are sufficiently similar in subject matter to enable them to be regarded as part of the same series. There is no rule of law that, if two deductions are both from holiday pay, that alone means that they must necessarily be sufficiently similar in that sense.

My conclusions on these points follow.

As to whether the challenge to [39.4] is within scope of ground 5, true it is that the wording of the ground simply refers to the tribunal having erred in holding that there is not a “series” where the gap between two deductions is more than three months. However, the tribunal’s decision at [39.4] is at best ambiguous. The conclusion that “[t]his approach” applies to the claim for each allowance separately, must mean that the “approach” just referred to in [39.3] applies in that way, being the approach that a series of deductions is broken by a gap of more than three months. There is no statement here that the tribunal would have considered that the question of whether there was a series should have been approached allowance by allowance, even had there been no “three-month rule”.

In any event, if to advance this argument requires permission to amend, I grant it. While Ms Barsam criticised the claimants for not raising the point sooner, Ms Newbegin pointed out that it did feature in her written skeleton argument when this appeal was due to be heard in 2022, though I observe that that is not the same as an application to amend. Further, the relisting of this appeal was ultimately put off until the Supreme Court’s decision in Agnew was known, and it is now the latest word on the subject of the meaning of “series” in general. Further, it is highly desirable that this point be addressed now, before this long-running litigation returns to the tribunal. Finally, Ms Barsam acknowledged that she was in a position to argue the merits of the point, and indeed did so.

I turn, then, to the substantive issue.

In Group 4 Nightspeed v Gilbert [1997] IRLR 398 (EAT) the claim related to a number of occasions on which it was said that there had been a deduction by failing to pay commission. At [17] the EAT said that the claims “formed a series by virtue of their connection to the same contract, the same commission scheme … [and the fact that] they had the same connection in subject matter, namely disputed commission payments. … In our judgment, the fact that there were various different reasons why in the case of each deduction the appellants declined to pay cannot alter the fact that, for jurisdictional purposes, the claims were being made in respect of a series of deductions.”

In Bear Scotland the EAT said at [79]:

The EAT’s reasoning on that point survives Agnew and indeed was described by the Supreme Court at [121] as “unimpeachable”. Further on, the Supreme Court said:

As I have indicated, it appears to me that the present tribunal’s conclusion at [39.4] was parasitical upon its conclusion at [39.3] and in any event does not appear to have been reached by an application of the principles that these authorities set out. It therefore cannot stand. What is the consequence? It is certainly clear, at least, that it would be open to the tribunal in this case, when considering whether there was sufficient similarity of subject matter between the impugned deductions, to hold that there was, because they were linked by the common fault or vice that holiday pay was not calculated by reference to normal pay, and that this was so, even though the particular allowances which might count as part of normal pay for the purposes of the holiday pay calculation, might, for a given claimant, vary as between different particular occasions.

Can, or should, I go further, and substitute a decision to that effect? I am mindful of the fact that the authorities emphasise that whether the “sufficient similarity” and “temporal” aspects of the concept of series are satisfied in the given case is a question of fact for the employment tribunal. However, importantly, the Supreme Court in Agnew noted, at [87], that “a purpose of this scheme is to protect workers, some of whom may be vulnerable”, and, at [90], that the broad purpose of the series of deductions provisions is “to provide a measure of protection against the operation of the short limitation period”. At [112] it said: “An important general purpose of the legislation we are concerned with in this appeal is to give workers a measure of protection from exploitation and, as Lord Leggatt explained in Uber BV v Aslam [2021] UKSC 5, [2021] ICR 657, para 71, it is, among other things, to protect vulnerable workers from being paid too little for the work that they do.”

In that context, it is significant that the test set out in Bear Scotland, approved by the Supreme Court (and indeed by the NICA in that case, which it upheld), is one of “sufficient” similarity. While the question is, in a given case, one of fact, I conclude that the proper approach for the tribunal to take to the facts found in a given case, is that, if, at a particular level of abstraction, there are similar features of the deductions, such that they would meet the test of similarity for these purposes, then it should conclude that there is sufficient similarity, notwithstanding that, if it descended to a more granular level of factual analysis, differences of factual detail might be detected. That approach serves the statutory purpose, and provides tribunals with a firmer footing for the exercise of evaluation of the facts in the given case that it is for them to carry out.

In the present case the undisputed and found facts are that all of the payments from which the claimants claim that there were unlawful deductions were of holiday pay, and in all cases they claim that the deductions came about because of a failure to factor in one or more allowances that should have counted towards normal pay. Taking the foregoing approach, I consider that, applying the law correctly to the facts found, the tribunal would have been bound to conclude that the requirement for the impugned payments to be “sufficiently similar” was satisfied in this case. I therefore substitute a conclusion to that effect.

The question of whether there was a sufficient temporal connection between the occasions of deduction relied upon by each claimant in a given case remains to be determined by the tribunal. It having been established that there is no “three-month rule”, the question of whether the temporal gap between two particular deductions is so long as to break the series is, as a starting point, at large; and I cannot preclude that there might be instances of temporal gaps which the tribunal might find to be long enough to break the chain in the given case.

However, I make two points about the approach which the tribunal should take to deciding such issues. The first is that, once again, the statutory purpose must be kept firmly in mind. The second is that the tribunal should not assess whether the “sufficient similarity” and “temporal” tests are satisfied in silos, but in the overall context of the relevant factual matrix, and recognising that one may have a bearing on the other. In particular, if all of the complaints by a given claimant are of deductions from holiday pay, proper account must be taken, when considering temporality, of the fact that there will inherently be gaps in time between successive holidays.

On this issue, the tribunal said this:

This ground raises, potentially, two questions. Firstly, did the tribunal err in concluding that, as a matter of law, the respondent could designate which particular days represented statutory, as opposed to purely contractual, holidays? Secondly, even if the law would have permitted the respondent to do so, did the tribunal err in concluding that it actually did so on the facts of this case?

The passage in Bear Scotland on which the present tribunal relied was obiter. Further, this topic has also now been considered by the Supreme Court in Agnew. In that case the overall leave entitlement derived from three sources, being the Directives, domestic regulations and contract. the tribunal in that case rejected an argument that workers were to be taken to have used up their leave under the Directives first, as making no sense. The reality was that both the worker and the employer regarded leave entitlement as a composite whole. That was the only sustainable interpretation. Any individual leave days taken from the overall pot were not possible of being allocated to one category or another. So each day’s leave must be treated as a fraction of the composite whole.

The NICA agreed, and was, in turn, upheld by the Supreme Court in the following passage:

Ms Barsam noted that the Supreme Court held (at [132]) that there is no requirement or presumption as a matter of law that leave should be taken in a particular order. She highlighted the observations, at [136] that workers who are “likely” to look at their leave entitlement as a composite whole, and at [137] that “in so far as it is not practicable to distinguish” between different types of leave then it “must form part of a single, composite pot.” This approach, she submitted, did not preclude the parties from designating as a matter of contract the order in which leave might be taken.

Ms Newbegin noted that the 2004 Regulations contain no equivalent of the power which regulation 15 of the 1998 Regulations (referred to by the EAT in Bear Scotland) give the employer to designate (subject to notice requirements) when the employee is to take their statutory leave. She also noted that regulation 17 of the 1998 Regulations enables employees to take advantage of whichever right may be more favourable, be it statutory or contractual. She also noted that at [138] the Supreme Court postulated that an employer cannot, after the event, purport to designate that a worker was taking leave from a particular entitlement at a particular time, so as to argue that a potential series of deductions was interrupted by the pattern of gaps thus created.

It appears to me that under the 2004 Regulations there is no statutory power for the employer to designate which leave days are to be treated as statutory as opposed to contractual. I agree with Ms Barsam that Agnew does not entirely preclude the contract granting such a power in a given case. But the purported exercise of any such power could not be relied upon to make the worker’s position in relation to a time point less favourable that it would have been, had it not been exercised. (I add that the same principle would appear to me necessarily to apply to the power under regulation 15 of the 1998 Regulations. I also do not think that regulation 17 has any bearing on this issue.)

Did the present tribunal, however, err in concluding that there had in fact been a designation in this case? I agree with Ms Newbegin that it did. That is for the following reasons.

As Ms Barsam acknowledged, in light of Agnew the first of the two factors relied upon by the tribunal at [56] must fall away. In relation to the second factor, the provisions of the World-Wide Agreement in question were referred to by the tribunal at [53]. They are as follows.

The starting point is a provision for full-time Cabin Crew to have an initial annual leave entitlement of 30 days, rising to 36 days after five years. There are then two seasons – summer and winter – in respect of each of which there are defined time windows during which employees may bid for leave dates. Thereafter leave is allocated and published by a specified date. Clause 25.1 then provides for a further 21-day window during which crew can seek to book leave “up to WTR levels.” After that additional window has closed “the following 28 days will be used by scheduling for WTR leave allocation”. Clause 21.6 provides that Cabin crew make take “up to 16 days of their entitlement in the summer season, but must ensure that WTR leave is discharged”; and clause 21.7 that they may take “up to 20 days of their entitlement in the winter season, but must ensure that WTR leave is discharged.” All of these provisions are subject to pro-rating in respect of part-time crew.

Standing back, it appears to me that the general intention is (a) that a worker who had not been initially allocated the maximum number of statutory dates could apply for further days up to WTR levels, and if they so applied, would at least be granted those further days; and (b) that the respondent required crew to at least seek the number of dates corresponding to their statutory entitlement (even if they did not trouble to use their maximum contractual entitlement). This gets Ms Barsam some way down the road in arguing that these provisions envisaged statutory days being taken first. However, her case then runs into the following difficulties.

The first is that, on my reading, clause 21.5 would not bite in a given case unless the crew member had initially been allocated less than their statutory entitlement, and then requested further days up to their entitlement. It may be said, in such a case, to create a power on the part of the respondent, but that is not the same as finding that the power was generally exercised. Further, the obligations in clauses 21.6 and 21.7 fall on the crew member; they do not give a power of designation to the respondent. Nor do they specifically provide that the days taken are to be deemed to have been taken, as between statutory and contractual, in a particular order. In a case, where, for example, a five-year server applied for, and got, their full 16 days in summer, and 20 days in winter, these provisions would not indicate which was which. Further, the imposition of such maxima for each season, coupled with the requirement to take statutory leave in each season, suggests that what is envisaged is a pro-rating of statutory leave to each season proportionate to its length, but, again, no particular order of statutory and contractual leave within the season.

Further, in any event the tribunal’s conclusion at the end of paragraph [56] was that the respondent was “entitled” to designate the first tranche of leave as statutory leave. Even if the tribunal concluded without error that the WWA gave the respondent the power to designate (at the time), particularly in light of the foregoing aspects, I do not agree with Ms Barsam that this paragraph amounts to a finding, or proper inference, that it in fact generally did so. Nor did Ms Barsam gainsay Ms Newbegin’s submission that there was, for example, no evidence that the respondent had in fact at the time purported to exercise any power (if clause 21.5 did confer it) to designate statutory leave dates after the bidding window had closed, generally or in any given case.

As for Euro Fleet, they were governed by their own, different, agreement, and the respondent did not rely on any specific provisions of it on this point. Given that, and in the absence of it being suggested that there was evidence of actual designation being exercised in relation to Euro Fleet, I agree with Ms Newbegin, that the tribunal’s statement that it “cannot accept” that the respondent discharged the same obligation differently in respect of the two fleets, is not a proper basis for its conclusion that there was also designation in relation to Euro Fleet.

Ms Newbegin submitted that, if I reached this point, then I should conclude either that the contractual and statutory entitlements fall to be treated as a composite whole, with every leave day accounting for the same respective proportions of each entitlement as every other leave day; and/or that it was open to the claimants, as part of their tribunal claims, to designate which day was which. I reject the latter proposition. It was not suggested that there was any practical way, in the real world, in this case to tell a leave day of one type apart from one of the other type, nor that any of the claimants purported to so designate at the time. I do not think that they could purport to do so retroactively after the event. The correct answer to the series of deductions question must turn on the application of the relevant principles to what in fact happened at the time, as events unfolded.

I therefore uphold the claimants’ ground 4, and will direct that the matter returns to the tribunal, on the basis that, in all cases, there has been no designation either way, and all leave days are to be treated equally as part of the composite whole.

The tribunal’s salient findings on this topic were, in summary, as follows.

Ten per cent of the duty free sales on a given flight formed a pot shared among the cabin crew on that flight, with the customer service director (CSD) receiving a double share. So, if there were, say, nine crew, including the CSD, the CSD would receive 2% of sales and the others 1% each [89]. Commission was ordinarily earned on every flight, paid monthly in arrears and taxable [90].

For reasons it set out, the tribunal concluded that these payments were intrinsically linked to the performance by cabin crew of their job tasks [99]. However, the tribunal concluded at [100]:

The tribunal added that the same applied to Mr Duffy, even though he was a CSD. It went on to conclude that commission earnings were not to be counted for holiday pay purposes.

This ground asserts that the tribunal erred in relying on its finding that excluding commission from holiday pay was highly unlikely to have a deterrent effect. Ms Newbegin submitted that this approach is contrary to the guidance in Williams. That requires holiday pay to correspond to normal remuneration and any payment intrinsically linked to the performance of tasks must be taken into account. There is no additional requirement that not to do so must have a deterrent effect.

Ms Barsam disagreed with that analysis. She also referred to the EAT in Willetts at [35] having preferred the submissions of counsel for the employees in that case, which had included at [33] the proposition that “any financial disadvantage may deter a worker (subject to de minimis principles)”. She submitted that the present tribunal’s approach was a permissible application of the de minimis principle. Ms Newbegin in reply highlighted the statement, further on in Willetts at [39], that “[i]n each case the relevant element of pay must be assessed in light of the overarching principle and objective of Article 7 which is to maintain normal remuneration so that holiday pay corresponds to (and is not simply broadly comparable to) remuneration while working”.

My conclusions on this ground follow.

First, the observations of the Court of Justice in Williams must be read in the context of the particular questions it was asked to answer. These included, at question 2, whether it was “sufficient that … the payment made enables and encourages the worker to take and to enjoy, in the fullest sense of the words, his or her annual leave; and does not involve any sensible risk that the worker will not do so”. This was followed by question 3: “Or is it required that the pay should either (a) correspond precisely with or (b) be broadly comparable to the worker’s ‘normal pay’.”

These two questions, as a pair, therefore postulate alternative analyses. Embedded within the first is the assumption that there could be an amount of holiday pay, that is not equal to normal pay earned when working, but is nevertheless not so low that the worker will, for that reason, be deterred from taking the holiday. The first analysis postulates that, if so, that would be sufficient to comply with Community law. The second analysis rejects that, holding that, to comply with Community law, holiday pay must, instead, equate to normal pay, but asks whether the test of that, is that it must “correspond precisely with” or “be broadly comparable to” normal pay.

The Court of Justice, as Lord Mance observed, gave a compendious answer to all of the questions posed. But the Advocate General’s analysis is instructive. This emphasises that holiday pay must be equivalent to normal pay and that if the Court’s past use of the word “comparable” had been thought to mean been that something less will do, that was a misunderstanding. It means “correspond exactly” to normal pay [47]. Further, the worker must not suffer “any disadvantage” as a result of deciding to exercise the right to annual leave; and a “prime example” of such a disadvantage is any financial loss which would deter him from exercising that right [51]. This leads to the conclusion that it would not be compliant for holiday pay to be “just enough to ensure that the worker is not prevented from exercising his right to paid annual leave, which would not constitute “maintenance of remuneration.” [53] A criterion of financial affordability is also rejected for other reasons at [54]. The Advocate General then answers the paired second and third questions at [90/2] (see [18] above) by adopting the second analysis and rejecting the first.

Accordingly, it is not the law that, if holiday pay is at least high enough to avoid a deterrent effect, that will be sufficient, even though it falls short of normal pay. While, in a given case, some element of imprecision or error in calculation or assessment might be forgiven, applying a de minimis approach, that does not mean that a particular allowance which satisfies the material and temporal components of normal pay need not be included in holiday pay, if it is considered that its omission would not have a deterrent effect. The tribunal appears to me to have discounted this allowance for that reason, and, in so doing, made a principled error. I will therefore allow ground 8.

Ground 9 relates specifically to the tribunal’s conclusion that an allowance called Back-to-Back allowance should not form part of Mr Ardabili’s holiday pay in the year for which the reference year was 2008/2009. The tribunal noted that Mr Ardabili only became eligible for that allowance after the first seven months of that year. Having done so, he received three such payments in the remaining five months. However, the tribunal considered that “I must look at the pay reference year as a whole, not just the last 5 months”, and then concluded that three payments in that 12-month period was insufficient for that allowance to count as part of normal pay for that year [117 – 118].

The short challenge brought by this ground is that it was an error to use the full 12 months as a reference period, given that Mr Ardabili only became eligible for this allowance at all when he moved from Euro Fleet to World Wide Fleet at the end of month seven.

I uphold this ground. The underlying principle, as expressed for example by the Advocate General in Williams at [90(3)], is that there should be a “sufficiently representative reference period”. While, in a general sense, the period should be sufficiently long to be representative, the tribunal’s approach should not be mechanistic. It must, in each case, use a period which can be treated as fairly representative of what ordinarily is the typical pattern during periods when the employee is actually working. A period during which the employee was working in a distinct role, and not eligible for an allowance, cannot be properly treated as representative of the normal pattern in relation to it. The tribunal therefore erred in its approach. A different question is whether the payment of this allowance on three occasions in a five-month period was sufficient to qualify it as normal pay in respect of the following leave year. That is a question that I must leave to the tribunal to assess upon remission.

I therefore uphold the respondent’s appeal and also all four of the claimants’ grounds of appeal, including, as to ground 5, in respect of [39.4] of the tribunal’s decision as well as [39.3].

The matter will now return to the tribunal to determine, or determine afresh, the relevant issues relating to: whether meal allowances were or were not part of normal pay; whether commission on duty free sales formed part of normal pay; whether Back-to-Back allowance formed part of Mr Ardabili’s normal pay in the relevant part of the reference year 2008/2009; and time limit issues. The tribunal will also, of course, need to decide the remaining issues necessary to determine the precise amounts of the awards to which each of the claimants will be entitled.

It was common ground on all sides that, in all the circumstances, including the significant time that has passed since the original decision, any remission should now be to a different judge, and I will so direct. However, the fact that appeals on both sides on the selection of issues that came to this hearing have succeeded should not detract from due recognition that the thorough and meticulous decision of Employment Judge R Lewis has already resulted in the bulk of the issues raised by this wide-ranging and factually and legally complex dispute being resolved. Further, he has made extensive findings of fact which will provide the foundation for the work that remains to be done when the matter returns to the employment tribunal, to bring this litigation to a conclusion. However, I will leave all matters of further case management, including as to whether any further evidence may be required or permitted, to the tribunal itself.