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The EAT hands down judgment in the case of British Airways Ltd v De Mello & Ors [2024] EAT 53


The EAT has given importance guidance as to the correct approach when applying the Supreme Court’s decision in Chief Constable of the Police Service of Northern Ireland v Agnew [2023] UKWC 33; [2024] ICR 51.

On Friday 19 April 2024 the EAT, per HHJ Auerbach, handed down its decision in British Airways Ltd v De Mello & Ors [2024] EAT 53, which considered the application of Agnew in cases of complex pay structures, where pay includes numerous different allowances and awards.

In upholding the employees’ appeal that the ET had erred in its approach to the meaning of “series”, the EAT agreed with the employees that:

  • the test when considering the nature of the deductions said to form a series is one of “sufficient” similarity;
  • if there are similar features of deductions so that they would meet the test of similarity, the tribunal 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;
  • in the present case the deductions all related to holiday pay and the deductions all came about because of a failure to factor in one or more allowances that should have counted towards normal pay;
  • the ET therefore erred in law in holding that the question of whether or not there is a series of deductions should be applied to each allowance separately;
  • when considering whether there is sufficient temporal connection between deductions, the ET must keep in mind the statutory purpose of protecting vulnerable workers;
  • the ET must also look at the overall context of the relevant factual matrix and recognise that, if all of the complaints are of deductions for holiday pay, there will inherently be gaps in time between successive holidays.

Nicola Newbegin, instructed by Andrew Lloyd of Lloyd Donnelly Solicitors Ltd, represented four of the six employees in their successful appeal.

Click here to read the full EAT judgment.

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