This issue arose in the case of Neville & Accessible Community Transport ADJ-00031888.  This is a case where the employee contended that Public Holiday pay was not paid until after he had lodged his complaint to the WRC.  The Adjudication Officer in this case held that the respondent had provided evidence of the payment of Public Holidays.  It does not appear that it was challenged that these were not paid until after the complaint issued. 

This is a case where the employee was not represented.

There is a case in relation to this, being the case of Macklin & Irish Life Assurance Limited, being a judgement of Mr. Justice Lavin.  In that case, Mr. Justice Lavin clearly set out that Public Holidays must be paid as and when they arise.

In this case the Adjudication Officer appears to have worked on the basis that as the payment was made, even though paid after the complaint was lodged, then in those circumstances, the claim was not well founded.

We would disagree with this view.  The Adjudication Officer in determining matters should, in our view, be determining matters as at the date that the claim was lodged.  Yes, we would fully accept that payment subsequently can be a mitigating factor.  However, it does not mean that a breach has not occurred.

In relation to the issue of Public Holidays of course, these are not covered by the Working Time Directive.  They are local legislation and therefore the case of Von Colson & Kamann would not need to be applied.  If these had related to annual leave, we would take the view that the Adjudication Officer would have had to consider compensation for a breach.  In any event, event in relation to Public Holidays, we would take the view that the Adjudication Officer in this case was incorrect in holding that there was no breach and that the claim was not well founded.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.

Richard Grogan

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