He was speaking after the Supreme Court ruled against a PSNI appeal relating to the holiday pay shortfall for its officers and staff. Dr Farry said the introduction of a cap on the claims in Northern Ireland would have required a six-month transitionary period in which it would not apply to claims lodged with the employment tribunal.  

“This is a detailed judgement which needs time for consideration,” he said.

“Focus has fallen on the absence of a two-year cap or limitation on claims in Northern Ireland, in contrast to Great Britain. This is fundamentally a red-herring to this PSNI case and indeed many other claims in Northern Ireland.  

“Within the Deduction of Wages (Limitation) Regulations 2014, which came into effect in Great Britain in early 2015, there was a six-month transitionary period to those regulations in which claims could be made under the pre-existing regime.  

“In Northern Ireland, the onset of such a cap with a six-month lead in time, and also the associated consultation period preceding it, would have been a major driving force for employees, especially guided by their trade unions, to lodge their claims with the employment tribunal.  

“Specifically, the Agnew case was first presented in November 2015. Any cap in Northern Ireland could not have been in place by this point. Even if it was in theory, the Police Federation would simply have acted sooner.  

“For comparison, in the aftermath of the PSNI data breach over 3,000 officers registered with the Police Federation for potential legal action within a matter of days. 

“Any cap would have been controversial. It would have amounted to arbitrarily restricting workers from accessing payments which had been illegally deducted. Furthermore, the prospects of any cap being approved by the Executive at that time were extremely low. The trade unions were already strongly opposed to a cap.   

“Notably, none of the four successor Ministers with responsibility for employment law subsequently sought to bring in any cap or limitation.  

“It will take considerable time for the public expenditure implications of this to become apparent. My latest understanding is the most current NICS estimate for our public sector is between £150m-£200m spread over a number of years.

“This judgement only clarifies the law. It doesn’t determine any individual claim. The claims already lodged with the employment tribunal still need to be addressed.  

“There are two paths forward open here. In the first, each claim is processed individually through the tribunal. This would take many years. It would need to work through records and make calculations, which may not necessarily be available.   

“In the second, employers and employees/unions reach agreements on how to process and put in place a scheme for the payment of lump sums. This would be easier, quicker and most cost-effective route. I would strongly urge all parties to adopt this route. 

“Finally, the Supreme Court ruling addresses the scope of back pay. The law on how holiday pay should be calculated going forward has been clear since 2014. All employers should already be paying holiday pay correctly. The scope of fresh claims now largely lies where employers are not correctly applying the law. Any employer in that situation would need to rectify the situation.”