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LTB 243/20 - Average Pay on Annual Leave (Holiday Pay Claims) Against Royal Mail Group Limited

05 May 2020, 13:02

LTB 243/20 - Average Pay on Annual Leave (Holiday Pay Claims) Against Royal Mail Group Limited

LTB 243/20

5th May 2020

Dear Colleagues,

Average Pay on Annual Leave (Holiday Pay Claims) Against Royal Mail Group Limited

Further to LTB 112/20 circulated on 9th March 2020, I am writing to provide Branches with an update on average pay on leave (holiday pay) in Royal Mail Group, both in terms of ongoing dialogue with management and the status of Employment Tribunal claims.

At a meeting on 17th March 2020 the Postal Executive rejected a further closed offer from Royal Mail Group to settle the long-standing issue of average pay on leave. This closed offer had been tabled by a manager who was not present at the previous talks and contained a formula for calculating the regularity of holiday pay that was against certain national agreements and would have disadvantaged many members.

On 19th March 2020 further correspondence was received from Royal Mail Group in which management questioned the use of a 52 week reference period (as outlined in LTB 112/20) and claimed that it was confusing and misleading. The LTB in question had been circulated following legal advice but for the sake of completeness the Department sought further legal opinion.

Unionline has now supplied a further judgement which supports the position of the union in relation to the use of a 52 week reference period and not that of Royal Mail Group. In part of their correspondence the solicitor from Unionline states the following “If Royal Mail say differently about what the reference period is then they should be asked for the legal basis of it. I could not find one”.

In light of this I have written to Royal Mail Group and made clear the relevant points about the 52 week reference period and also confirmed that the last closed offer received has been rejected but that we remain open to further talks.

Branches should however be aware that over the past six weeks there have been developments in relation to the Employment Tribunal submissions. These are reported below:

England and Wales

A preliminary hearing was held by telephone on 27th March 2020. The legal representatives have agreed the clauses below, meaning that those who have already submitted ET claims will be able to have additional periods of annual leave added to their existing case without needing to submit an additional ET1:

For all claimants who have already lodged claims in this multiple, additional claims of for subsequent periods of underpaid holiday pay are to be added by way of automatic amendment without the need to submit individual applications to amend.
In respect of claims not yet lodged, once lodged, the same principle shall apply until determination of the multiple, i.e. that any additional subsequent periods of alleged underpaid holiday pay shall be added automatically without the need for further application to amend.

Unionline has informed the Department that they are hoping to hear from the Tribunal in the near future in relation to whether these words are acceptable and following this will also provide an updated newsletter. Those who do not yet have a live case will however still need to follow the previous process starting with ACAS and submit a new claim. The Regional Employment Judge (REJ) will then decide if such submissions form part of the multiple claim. This request was previously notified to Postal Executive members so that they could relay this on their Divisional calls with Branches, but it is worth repeating.

Importantly Branches must note that the REJ has also requested that CWU claimants use a standard claim form going forward and identify themselves as CWU claimants by listing the CWU as their representative. Claimants are also asked not to phone the ET for an update on their particular claim.

In terms of timescales going forward, the parties have until 30th September 2020 to identify potential lead claimants. It is envisaged this may be around 30 in number that will then be whittled down to a final 10. Royal Mail Group are not required to file an ET3 pending the identification of lead claimants.

A date of 5th October 2020 has then been set for a further preliminary hearing to identify the lead cases, when the ET3 is to be filed, listed and further directions given.

SCOTLAND

Branches will recall that all employment tribunal claims in Scotland were originally sisted until 20th April 2020. This was then extended by just over a week to 28th April 2020.

Following an update from Unionline in Scotland, unfortunately the position is that all Tribunal hearings scheduled to take place from the middle of March until 30th June 2020 have now been cancelled. These claims will be prioritised when the Tribunal list in person hearings again.

In the telephone case management discussions involving the respective parties, in order to reschedule cancelled hearings the Tribunal has advised that these Employment Tribunal cases will now be listed for a final hearing through January 2021 until March 2021.

The cases are of course safely in the system and it is possible that the timeframe for final hearings will be reduced. However, rather than raise expectations, at the time of writing we have to work on the assumption that there is likely to be a significant delay in arranging a final hearing. Unionline will be writing to the Tribunal this week to request that a telephone case management be arranged so that cases can start to be progressed.

NORTHERN IRELAND

The situation in Northern Ireland remains unchanged at present, with all cases awaiting the outcome of the case involving the Police Service of Northern Ireland.

Branches will appreciate that the COVID-19 crisis has undoubtedly resulted in the timescales for the Employment Tribunals and the associated hearings being deferred. Whilst this is disappointing it will hopefully allow more time for talks with the business.

It is also important that Branches continue the previous good work in terms of maximising the number of claims and the Department will ensure that further updates are circulated as and when they become available.

Any enquiries in relation to the content of this LTB should be addressed to the DGS(P) Department.

Yours sincerely,

Terry Pullinger

Deputy General Secretary (Postal)

LTB 243/20 – Average Pay on Annual Leave (Holiday Pay Claims) Against Royal Mail Group Limited https://emails.cwu.org/t/d-l-miuutld-jtfltzjh-h/



View Online https://emails.cwu.org/t/d-l-miuutld-jtfltzjh-k/

LTB 243/20 - Average Pay on Annual Leave (Holiday Pay Claims) Against Royal Mail Group Limited

06 May 2020, 15:25

April 2020
Department for business, Energy & industrial strategy.

Holiday Pay Guidance on calculating holiday pay for workers without fixed hours or pay
(Edited)
Section 2
1. Recent changes to the Law

“The Government recently legislated to change the law on holiday pay. These changes took
effect on 6th April and employers should be following the new law.
Increasing the Reference Period
From 6th April, the reference period increased. Previously, where a worker has variable pay or
hours (as discussed later in this guidance), their holiday pay was calculated using an average
from the last 12 weeks in which they worked, and thus earned pay. This reference period has
been increased to 52 weeks.”

If you read the LTB 243/20, why is this change in the law being questioned?


Confirmation in the LTB 243/20, 5th May, that the preliminary hearing, due on 27th March 2020, was carried out by telephone conversation.

A preliminary hearing takes place before the main employment tribunal hearing. It helps the judge understand your case and make arrangements for the main hearing.

I understood the above meant the main hearing would follow directly, within weeks, not to wait until October for a further preliminary hearing

I thought the purpose of the tribunal process was to gain a definitive decision & if RMG have provided closed offers it is apparent they recognise the inevitability of the situation. I wonder if another offer will be forthcoming before 5th October (England & Wales). In any event if the law has changed re average holiday pay I fail to see how this is negotiable in the first place.

LTB 243/20 - Average Pay on Annual Leave (Holiday Pay Claims) Against Royal Mail Group Limited

16 May 2020, 17:03

'The law is the law' someone once said..... once RM settle this, will we all get back-dated holiday pay? I tried putting in a claim last year but rep said it was only for Full-timers to claim ( PT 2nd class workers as per ).

LTB 243/20 - Average Pay on Annual Leave (Holiday Pay Claims) Against Royal Mail Group Limited

16 May 2020, 21:36

JKSmudge wrote:'The law is the law' someone once said..... once RM settle this, will we all get back-dated holiday pay? I tried putting in a claim last year but rep said it was only for Full-timers to claim ( PT 2nd class workers as per ).


HOLIDAY PAY - FLOW CHART

2. These members do not need to be grade specific as the claim is about employer v employee.

3. It does not matter whether these members are part-time or fulltime as this is about additional hours worked and average earnings.

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