Figures obtained under Freedom of Information requests have shown the PSNI have, to date, spent more than £1.12million on legal fees in their failed action around officers’ holidays which ultimately ended up in the Supreme Court.
Of legal costs so far, £752,910.30 was paid for the challenge in Northern Ireland courts, with a further £368,514.10 in respect of the Supreme Court, making a total of £1,121,424.40.
That figure is expected to significantly increase, as it does not include VAT or legal costs awarded against the PSNI.
On top of that is the vast payout to officers affected, which is also expected to be in the region of £30million.
Accountability however is vague, as all agencies contacted appear to divert the issue back to the PSNI, which has declined to comment on the costs while “proceedings remain extant [and] legal fees are yet to be determined”.
Changes to rules a number of years ago meant regular overtime carried out by civil servants, combined with other payments on top of basic salary, should be taken into consideration when setting holiday pay rates.
In 2019, the Court of Appeal ruled PSNI staff were entitled to have the amended rates retrospectively applied for up 20 years.
The PSNI appealed this to the Supreme Court, but were defeated, with Lady Justice Rose ruling: “A series of deductions or underpayments does not come to an end, as a matter of law, simply because it has been interrupted by a lawful payment.
“Nor does an interval of more than three months between deductions or underpayments necessarily mean that the relevant series has been broken.”
When shown the figures, Liam Kelly, Chair, Police Federation, said: “The Holiday Pay legal costs for the PSNI are staggering.
“Being as cash-strapped as they are, the PSNI can ill-afford a legal bill exceeding £1.12million.
“With the original tribunal still to adjudicate on rectifying this matter, and the expected award of damages, a significantly larger bill for the PSNI will be coming in the future.
“As the employer, they challenged and lost every step of the way right up to the Supreme Court.
“The associated legal costs could have effectively been avoided had the PSNI engaged productively with the Police Federation prior to this legal action being taken.
“Indeed, once embarked upon, the legal costs could also have been greatly reduced had the PSNI accepted the first ruling without embarking upon costly legal appeal processes.
“The Police Federation for Northern Ireland believes considerable savings on this matter, and future issues, could be achieved by adopting a pragmatic approach to contested issues.
“Productive consultation, mediation and conciliation are alternative ways of resolving disputes that would benefit both the PSNI and ourselves.
“That way, the £1million paid out in the holiday pay legal costs could have been better spent on services, officer welfare and recruitment.
“We are fully engaged with the Service in our efforts to achieve appreciable savings on legal costs by being open to adopting more practical ways of reaching mutually acceptable outcomes.”
Special employment solicitor Niall McMullan, from Edwards & Company, who represented the Police Federation in the action, said: “We successfully defended the PSNI’s two appeals on behalf of all officers we represented; however, it was a protracted and frustrating process for the officers, and whilst they were delighted when the case ended with a favourable Supreme Court Judgement, much time and money has been expended, which we felt was not necessary.
“Our work continues, and the parties must now return to the Tribunal to finally decide the sums to be awarded to the officers.
“It is hoped the PSNI adopt a pragmatic approach from now on.”
The PSNI were asked why the case was taken to the lengths it was and if there any expectation of success?
In response, a spokesperson replied: “This matter was referred to the UK Supreme Court (UKSC) to determine arguable points of law that were identified as being of greatest importance for the whole of the United Kingdom.
“In summary the UKSC was asked to consider the following issues:
– Whether the Respondents in bringing their complaints as to a series of unlawful deductions and underpayments of holiday pay are restricted to a period ending no later than three months prior to the presentation of the complaints to the Tribunal.
– What is meant by a series of unlawful deductions to pay and when such a series ends.
– What is the correct approach to calculating unlawful deductions and underpayments of holiday pay, including the approach to annual leave entitlement, overtime and the reference period for calculating normal pay.
– Whether the Respondents have been discriminated against contrary to Article 14 of the European Convention on Human Rights read in conjunction with Article 1 of Protocol 1.”
The spokesperson continued: “The PSNI acknowledges the findings of the UKSC. If there was no prospect of success, the UKSC would typically not have accepted the case for determination.”
The response confirmed the decision to challenge was authorised by the office of the Chief Constable and no internal review into the action has been carried out.
Asked if the expenditure was considered a reasonable use of public funds, the spokesperson concluded: “Proceedings remain extant. Legal fees are yet to be determined, and as such it would not be appropriate for us to comment further.”
Meanwhile, a spokesperson for the Policing Board, which has oversight of the PSNI, said: “The Board has been informed and updated by the Chief Constable of the litigation taken on the Holiday Pay Case, key junctures, and the litigation strategy of the PSNI in response.
“The Board has not ‘sanctioned’ legal action as that is an operational matter for the Chief Constable.
“The Holiday Pay case has been a long and protracted legal case which has been ongoing for over several years.
“The PSNI in taking any action is informed by legal advice, and the litigation strategy will consider the merits of actions including costs likely to be incurred.
“The Board has not specifically discussed the costs outlined for this case. The Board has, however, expressed general concern about increasing legal costs incurred by the PSNI in a range of civil and other litigation actions taken against the PSNI.”
Finally, the Department of Justice was asked whether the Minister would conduct a review as to why this matter reached the lengths it did, unsuccessfully for the PSNI, and at huge cost to their budget and the public purse.
A spokesperson replied: “This is a matter for the Chief Constable, who is accountable to the Northern Ireland Policing Board.”
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