Mr P Foy and Mrs E Kemp v Disclosure and Barring Service: 2407183/2024 and 2407184/2024 Mr P Foy and Mrs E Kemp v Disclosure and Barring Service: 2407183/2024 and 2407184/2024
EMPLOYMENT TRIBUNALS
Case No 2407183/2024, 2407184/2024
Between
Mr P Foy and Mrs E KempClaimantDisclosure and Barring ServiceRespondent
Before
Employment Judge JohnsonMr S Margo (instructed by counsel) for respondentDate 8 September 2025
JUDGMENT
The judgment of the Tribunal is that: First claimant(1) The first claimant’s complaint of unauthorised deduction from wages contrary to section 23 Employment Rights Act 1996 is not well founded. This means that this complaint is unsuccessful. Second claimant(2) The second claimant’s complaint of unauthorised deduction from wages contrary to section 23 Employment Rights Act 1996 is not well founded. This means that this complaint is unsuccessful. Time limits in relation to both claims(3) The complaints of unauthorised deductions from wages relating to those deductions allegedly made in 2023 were not presented within the applicable time limit. It was reasonably practicable to do so.
REASONS
[1]These proceedings arise from the claimants’ employment with the respondent which was created in November 2012. The respondent was established following the merger of the Criminal Records Bureau (CRB) where the first claimant had begun his employment in 2008 and the Independent Safeguarding Authority (ISA) where the second claimant began her employment in April 2012.[2]The reason for the claimants bringing the claim is that they believe that the respondent was paying them for a 42 hour working week which resulted in their hourly rate of pay being below the national minimum wage for a period in 2023 and 2024. The respondent disputes this and argues that the claimants were paid for a 37 hour working week which meant that their hourly rate during these periods was at or above the national minimum wage which prevailed at the relevant time.[3]The claimants presented their claims under the above case numbers to the Tribunal on 7 November 2024 following respective periods of early conciliation which for both, began on 13 September 2024, and which ended on 21 October 2024 (in the case of the first claimant) and on 23 October 2024 (in the case of the second claimant).[4]Within section8.1 of the claim form, they referred to their claim being about ‘other payments’ and in section8.2 they provided background information. They referred to being paid less than national minimum wage during April to July 2023 and during April to June 2024.[5]The claimants had originally brought two claims in the Tribunal under case numbers 2404640/2024 and 2501802/2024 relating to Production Notices submitted to the respondent in accordance with section 11 of the National Minimum Wage Act 1998. When replies were not received within the 14-day notice period, these claims were presented. The respondent then presented the first claimant with a Production Notice on 6 September 2024 and the second claimant on 4 September 2024. The claimants withdrew these complaints on 11 December 2024 and the Tribunal issued judgments dismissing the claims upon withdrawal on 23 December 2024.[6]In the current claims (2407183/2025 & 2407184/2025), the claimants sought payments from the respondent. These were in respect of the difference between their actual salary received during identified periods in 2023 and 2024 and what they believe they should have been paid had the asserted applicable national minimum wage rates been paid. On 10 January 2025, Judge Batten ordered that the two claims be combined and heard together.[7]The respondent presented a response and grounds of resistance on 6 January 2025 in respect of both claims. The respondent disputed the claims and said that the claimants were contracted to work 37 hours per week and excluding meal breaks which were unpaid. They submitted that the unpaid meal breaks equated to 1 hour per day and which resulted in a typical attendance at work of 42 hours, (37 working hours + 5 unpaid meal break hours). They also argued that the 2023 deductions were out of time given that the claim was presented on 7 November 2024 and more than 3 months following the final 2023 deduction. They disputed that these earlier deductions could form part of a series ending in 2024 and thereby being in time.[8]Judge Thompson dealt with case management at the Preliminary Hearing Case Management (PHCM), on 10 February 2025. She listed the case for this final hearing, identified the issues (see below) and made case management orders. The hearing was originally listed to be heard entirely remotely by CVP, but that was later converted to a hybrid hearing at the request of the parties and permitted by Judge Slater on 28 May 2025.[9]Mr Cox sought to amend the claims so that additional months of underpayment could be claimed for July to September 2023 and July 2024 to January 2025. Judge Leach considered this matter on 27 March 2025 and allowed the later period as there were no time limit issues but reserved the earlier 2023 period element of the application to the final hearing. This was because of the time limit issues that were involved. Following my discussion with the parties, Mr Margo confirmed that the respondent did not object to the remaining amendment application. I agreed that this could added to the claim, (see issues below).
Issues
[10]The issues which the Tribunal has been asked to consider were initially described by Judge Thompson at the PHCM on 10 February 2025.[11]The respondent contends that the claimants’ claim from April 2023 to (originally) July 2023 are time barred as the claim was presented on 7 November 2024, being more than three months from the alleged deductions. The respondent denies that the claimants’ complaints amount to a series of deductions. However, they agreed that at least part of the claim is in time, namely, those complaints which arose in 2024.[12]In accordance with the order of Judge Thompson dated 10 February 2025 and the claimant’s recent amendment application, the issues are as follows: Time limits[13]Were the unauthorised deductions made within the time limit in section 23 of the Employment Rights Act 1996? The tribunal will decide: a) was the claim made to the tribunal within three months allowing for any early conciliation extension of the date of payment of wages from which the deduction was made? b) If not, was there a series of similar acts or failures and was the claim made to the tribunal within three months allowing for any early conciliation extension of the last one? c) If not, was there a series of deductions and was the claim made to the tribunal within three months allowing for any early conciliation extension of the last one? d) If not, was it reasonably practicable for the claim to be made to the tribunal within the time limit? e) If it was not reasonably practicable for the claim to be made to the tribunal within the time limit, was it made of in such further time as the tribunal considers reasonable? Unauthorised Deductions[14]Were the wages paid to the claimant in: a) April to June 2023; b) July to September 2023; c) April to June 2024; and, d) July 2024 to January 2025; less than the wages they should have been paid?[15]How much is the claimant owed? Note concerning the periods claimed[16]In relation to the periods identified in paragraph 14, I noted that in reality there were two distinct continuous periods, namely 14(a) and (b) from April to September 2023, followed by a gap, with 14(c) and (d) covering a continuous period from April 2024 to January 2025. This would be relevant in relation to the application of time limits under section 23 Employment Rights Act 1996, (see paragraph 13 above). Evidence used[17]This case arose from the National Minimum Wage Act 1998 (NMW) and a complaint brought in relation to the application of section 17(1) NMW and an unlawful deduction from wages complaint under section 23 Employment Rights Act 1996 (ERA).[18]Consequently, section 28 NMW provides that where such a complaint for wages is made relating to remuneration under section 17(1) NMW, it will be presumed that the claimants were remunerated less than the NMW rate applicable at the time, unless the contrary is established. This means that the burden of proof is ‘shifted’, and the respondent witnesses would give their evidence first.[19]However, the first claimant (Mr Foy), had recently injured his left arm and had a hospital appointment in the morning of Day 2 of the final hearing. Consequently, the parties’ representatives helpfully agreed that his evidence should be heard first and out of turn. This means the witnesses who gave evidence during this hearing were as follows: Day 1 – afternoon a) Mr Paul Foy (first claimant) b) Mr James Guilfoyle (respondent’s Associate Director of Organisation Development) Day 2 – morning c) Mrs Elizabeth Kemp (second claimant) d) Miss Rebecca Hunter (claimants’ PCS union representative)[20]The respondent had prepared the joint bundle of documents which had been agreed with the claimants, and which consisted of (amongst other things), with the following documents: a) Proceedings b) CRB (predecessor employer of Mr Foy) documents c) Independent Safeguarding Authority (ISA) documents (predecessor employer of Mrs Kemp d) DBS documents e) Payslips for both claimants f) DBS and PCS shared documents and correspondents g) Production Notices relating to both claimants. h) Extracts from Hansard relating to parliamentary questions from a variety of years. The bundle in its original form ran to 855 pages over two lever arch files. There was also the respondent’s counter schedule of loss which was not used during this hearing which focused upon questions of liability.[21]Mr Margo made an application to add a further document to the bundle which was the ‘ISA – DBS Transfer Information Pack Terms & Conditions’ and which was 18 pages in length. Mr Cox confirmed he had no objections to this document being included within the bundle. I accepted that: a) Mr Guilfoyle had only recently discovered this document; b) that it was relevant to the issues under consideration; and, c) that it was in the interests of justice to include it within the main bundle beginning from page 856. Mr Guilfoyle gave supplemental evidence regarding this document and Mr Margo referred to it during final submissions on Day 2.
Findings of fact
[22]The parties should note that the Tribunal’s findings of fact do not seek to deal with every point where the parties disagree, simply what is relevant to the issues which the Tribunal is being asked to consider. If the discussion of an incident or point is not referred to within these findings, it does not mean that it has not been considered by the Tribunal, simply that it is not relevant to the issues and the findings that we are required to make.[23]In terms of the findings that we make, the Tribunal has reached its decision on what it considers to be on balance of probabilities the most likely way/reason in which an incident arose. The respondent[24]The respondent (as explained above), is known as the DBS and it describes its purpose as being to ‘help…employers make safer recruitment decisions…by processing and issuing DBS checks for England, Wales, the Channel Islands and the Isle of Man. DBS also maintains the Adults’ and Children’s Barred Lists and makes considered decisions as to whether an individual should be included on one or both of these lists and barred from engaging in regulated activity’.[25]It is understood that the DBS is a non departmental governmental body (NDGB) and is the product of the merger of two earlier NDGBs, the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA) which took place in December 2012. However, while its employees are public sector workers, they are employed by the DBS.[26]As a large employer, the DBS has access to considerable HR and Payroll support and has many policies and procedures which apply to how employees work and are paid. However, as will be explained below, there did appear to be some confusion and a lack of clarity and consistency concerning how matters such as pay and working time were calculated and applied to employees. The first claimant[27]Mr Foy started working for the Criminal Records Bureau (CRB) on 28 July 2008 as an Administration Officer, (AO). His contract of employment was provided within the hearing bundle, (pp71-85). Pay was provided within clause 3. Clause 4 of the contract under the heading, ‘Hours’, informed Mr Foy that ‘You will work a 5 day week of 37 hours excluding meal breaks’, (p75).[28]In his evidence, Mr Foy said that he believed the CRB provided him with paid breaks meaning that by dividing his wage by 42 hours (the total of 37 hours of work plus 5 hours of breaks each week). Consequently, he was paid less than the national minimum wage during the relevant periods identified within the list of issues. He asserted that this position remained unchanged following his transfer to the DRB.[29]He did not dispute the terms and conditions dated 15 July 2008 and agreed that his working hours were 37 each week.[30]Mr Foy was asked about the CRB guidance extract relating to overtime which he accepted predated his contract of employment having been created in March 2007, (p58-61). He was unfamiliar with this document and was unable to commit to its provisions, other than that he said overtime was rarely worked in his role. However, I accepted that in terms of Hours worked before overtime was triggered, they were described as ‘conditioned hours’. Full time employees must work 42 hours gross conditioned hours a week before overtime can be worked and claimed. Within this document, the use of the term ‘gross’ as opposed to ‘net’ means that it includes the 5 hours lunch breaks in addition to the 37 hours of work. No mention was made within this guidance of the 5 hours lunch breaks being paid, (p58).[31]Mr Guilfoyle argued that the contractual terms applying to Mr Foy regarding his Hours clearly recorded 37 net conditional hours of work, (p75).[32]Copies of Mr Foy’s payslips were included, and Mr Guilfoyle was cross examined concerning one dating from January 2010, (p386). While he was challenged about the description of 42 hours being used for Mr Foy’s ‘standard rate (pro-rated) for a full-time employee’, Mr Guilfoyle observed that the box marked ‘Conditioned Hours’ identified a figure of ‘42.00Gross’. This description was repeated in the copy of the June 2020 payslip, (p387). This description was consistent with the guidance given for overtime and took account of the lunch breaks. I was unable to identify anything within the payslips which suggested that the lunch breaks were paid. The second claimant[33]Mrs Kemp began her employment with the Independent Safeguarding Authority (ISA), on 30 April 2012. She confirmed that she had made every effort to find her contract of employment. A screenshot was provided which was an extract of relevant terms and conditions and which Mrs Kemp confirmed reflected her terms. It includes a description of Hours in clause 6 and which says the following: ‘You will normally work a 5 day week net conditioned full time working hours for ISA staff are 37 per week (this excludes daily meal breaks of one hour) making 42 gross hours per week…’, (p161-2).[34]Mr Guilfoyle considered this document within his evidence and argued that this expected an employee to work 37 hours and in addition, would take a one hour lunch break each day. Merger of the CRB and ISA to form DBS[35]The merger took place in December 2012 and Mr Foy retained his existing terms and conditions with the CRB.[36]In advance of the merger and the transfer of employees into the DBS, an information pack was produced for ISA employees, (pp856-873). Mr Guilfoyle explained it was dated August 2012 and therefore preceded the transfer in December 2012.[37]This document included details of the terms and conditions that would be preserved following the transfer. Hours of work were described as “…37 hours per week (excluding unpaid lunch breaks) Monday to Friday inclusive”, (p865). In terms of overtime, a similar formula is described to that adopted by the CRB in their guidance document described above. This provided that “Full time employees are expected to work 37 hours (exclusive of unpaid lunch breaks) before overtime is justified”, (p868). I determined that this was adopting the ‘gross conditioned hours’ approach which meant that 37 plus 5 hourly lunch breaks must be worked before overtime is payable.[38]A letter sent to ISA employees on 7 November 2012, from Mr O’Brien who described himself as the ‘Senior Owner’ for the DBS and where amongst other things, he confirmed that ISA employees would transfer to the DBS with their existing ISA terms and conditions, (p535-6).[39]There was no dispute that the terms and conditions for ISA employees did not change in relation to Hours and breaks and I concluded that from my reading of the relevant documentation, Mrs Kemp was paid for 37 hours per week and was not paid for the 5 hourly unpaid lunch breaks which form part of the working week of 42 hours gross.[40]Reference was made to the DBS Flexi Time guidance dated February 2017 by Mr Margo which identified a standard working week of 37 hours per week. Mrs Kemp disputed the relevance of this document referring to her original contract of employment and asserting that she believed she was paid for a 42 hour week including 37 hours and 5 hours paid lunch, (pp112-127).[41]While I agreed that this document was separate to the claimants’ respective contracts of employment, it did emphasise the usual working week of 37 hours and this excludes lunch which must be taken where an employee works more than 6 hours per week. It was a document produced by the DBS several years following the merger and to some extent the terms appeared to be tailored for new starter employees. Nonetheless, I was content that the 37 hour working week was the default position within the DBS at this time. However, in the case of the claimants, the working week and duration and the nature of breaks was determined by their predecessor contracts of employment with the CRB and ISA respectively.[42]Ms Hunter also gave evidence in support of the claimant’s case and produced a lengthy witness statement of 202 paragraphs. Her evidence was from the perspective of an employee of the DBS, as a Public & Commercial Services Union (PCS) union/DBS Branch Chair and having represented the claimants since 2024. She confirmed that although she could not find her contract of employment, it would have reflected the specimen screenshot of the ISA contract provided by Mrs Kemp. I accepted that on balance, this was correct given that Ms Hunter originally worked with the ISA as well, (pp161-2).[43]Her evidence was interesting in many ways and provided the outcome of PCS research into governmental department’s treatment of normal hours of work, often relying upon public records such as minutes from Hansard. This was very much a history lesson into civil service hours of work and pay. This began with the Minister of Health on 31 July 1936 stating that ‘…normal hours of duty applicable to the Civil Service are generally, 42 hours a week’. This continued with reference to several years ending up to November 2024.[44]Ms Hunter argued that 42 hours gross and 37 hours net has been a typical Civil Service working pattern for over 90 years. But without further information being provided, I considered that this could simply be based upon the traditional lunch hour being included and which is a historic feature of many public sector roles, before the Working Time Regulations played a role in calculations of working time. It demonstrated at its highest that the CRB and ISA were not outliers in how they were looking at working hours and it was noted that the terms gross 42 hours and net 37 hours were used in some of the references produced. There was insufficient evidence available before me, to demonstrate to me that on balance, paid lunch breaks were a feature of civil service pay generally.[45]The SLT (Senior Leadership Team) Pay Related questions document from 2023 which informed employees that contracts calculated pay over 37 worked hours. It acknowledged that there was an ‘anomaly’ relating overtime being paid based on 42 hours work. The SLT argued that this arose from an expectation that employees would when working full time have been at work for 42 hours before overtime would be triggered. This was a document which asserted the employer’s position to employees who had raised concerns upon this matter. However, the claimants’ original contractual documents also reflected the traditional position of employees working 37 hours over 5 days with an hour for lunch being taken for each day, making 42 hours. I understood that with greater reference to the Working Time Regulations shorter rest period during the last 25 years or so, (see below) combined with flexible hours of work, employees are less likely to take full hour lunch breaks than they would have done in the past. However, this has not been reflected in existing overtime documents and only more recently has this become appreciated by management, (pp251-256).[46]In many ways the SLT document is separate to the arguments concerning working hours and national minimum wage calculations. I did conclude on balance, it reflected the evolving position of longstanding internal procedures and the interaction between each policy or procedure, meaning that a change to one process impacts upon how others work. This could often cause some confusion which required further changes to take place.[47]For the purposes of this case however, I found that the claimants were correct when they relied upon their original terms and conditions and not believing them to have changed following their transfer to the DBS. Consequently, these were the documents upon which I should focus during my deliberation of this matter. Law National Minimum Wage Act 1998 (‘NMWA’)
Law
[48]Section 17 provides that where a worker is paid less than the national minimum wage, they shall be taken to be paid during the relevant period at a rate equivalent to the relevant national minimum wage figure.[49]Section 24 provides that in such circumstances, a worker may present a claim to the Tribunal as a detriment under section 23 of the Employment Rights Act 1996.[50]Section 28 provides a reversal of the burden of proof, where in the case of a question about qualification for national minimum wage, it shall be presumed that the individual qualifies unless the contrary is established. Employment Rights Act 1996 (‘ERA’)[51]Section 13 of the Employment Rights Act 1996 (‘ERA’) provides that a worker has the right not to have their employer make an unauthorised deduction from their wages.[52]Section 23(2) of the ERA provides that a worker may present a complaint under section 13, providing it is presented before the end of a period of 3 months beginning with the date of payment of wages from when the deduction was made or under section 23(3), in respect of a series of deductions or payments where the last payment falls under the provision of section 23(2).[53]Section 23(3A) allows consideration to be taken of the early conciliation provisions under section 207B.[54]Where the Tribunal is satisfied that it was not reasonably practicable for a claim to be presented in accordance with section 23(2), section 23(4) provides the Tribunal may consider the complaint within such further period as it considers reasonable.[55]In relation to time limits, Mr Margo referred to the Supreme Court decision of Chief Constable of the Police Service of Northern Ireland and another v Agnew and others [2023] UKSC 33. Although a lengthy judgment he was only concerned with paragraph 127 which dealt with the question of time limits in relation to what a series of deductions was: “127 Secondly, we agree with the Court of Appeal that the word ‘series’ is an ordinary English word and that, broadly speaking, it means a number of things of a kind, and in this context a number of things of a kind which follow each other in time. Hence, whether a claimant in respect of two or more deductions constitutes a claim in respect of a series of deductions is essentially a question of fact, and in answering the that question all relevant circumstances must be taken into account, including, in relation to the deductions in issue: their similarities and differences; Their frequency, size and impact; How they came to be made and applied; not lengths them together, and all other relevant circumstances.” Working Time Regulations 1998 (‘WTR’)[56]Rest breaks are dealt with in regulation 12 of the WTR. It provides (regulation 12(1)), for the entitlement to a rest break where a worker’s daily working time is more than 6 hours. The duration and terms of the break is described within regulation 12(2) as being ‘…in accordance with any provisions for the purposes of this regulation which are contained in a collective agreement or a workforce agreement’. However, regulation 12(3) provides that subject to any such agreement, the rest break must be for an uninterrupted minimum period of 20 minutes away from the worker’s workstation.[57]Regulation 23 specifically deals with collective and workforce agreements which includes the possibility of such an agreement modifying or excluding regulation 12(1) in relation to particular groups of workers objective or technical reasons. However, this provision is understood to be not relevant to these circumstances of this case.[58]While focussing on the entitlement to a period of time for a break, regulation 12 is silent as regards the question of whether it must be paid or unpaid, (other than by reference to those set by agreements described in regulation 12(2)). Consequently, while no right for paid breaks directly arises from regulation 12, a worker’s terms and conditions may provide them. Discussion Unauthorised deductions arising from the application of the NMW
Discussion
[59]There was no dispute between the parties that if the claimants were entitled to paid breaks, meaning that they were paid for 37 hours work plus 5 hours breaks each week, then their pay fell below the NMW applying the relevant hourly rate of pay.[60]Alternatively, it was agreed that if the claimants were paid only for the 37 hours per week worked and were not entitled to paid breaks, then their pay would be above the NMW at the material times.[61]Although I took account of section 28 of the NMWA and reversal of the burden of proof, this was an NMW complaint which dealt with the narrow interpretation of the claimants’ contracts and what amounted to the hours of paid work. Nonetheless, I was aware that Mr Margo on behalf of the respondent, had the burden of proving that the claimants were paid based upon 37 hours of work rather than 42 hours.[62]The Public and Commercial Services Union (PCS) had been pursuing a concern with the DBS since September 2022, (p258). The PCS sent a letter to the DBS on 25 July 2023, and which included Mr Guilfoyle as a recipient, (pp278-293). It was a lengthy letter but essentially it involved a grievance which asserted a belief on the part of the PCS that administrative officer (AO) grades were not being paid at the current NMW of (at that date), £10.42 an hour. They referred to an agreement which they believed existed between the parties, that overtime was paid following a 42 hour paid working week. By using the then AO ‘spot rate’ of £22,463 over a 42 hour paid working week, they calculated an average hourly rate of £10.25 which was 17 pence below the NMW.[63]The DBS had set out its position in an earlier letter dated 29 June 2023 and sent by Mr Guilfoyle, (pp257-260). It was headed ’37 hours vs 42 hours overtime rate’. He asserted that national minimum wage legislation provided that calculations should be based upon actual working hours and not meal breaks when calculating minimum wage. Unfortunately, negotiations between the PCS and DBS failed to reach an agreement and this has resulted in these proceedings being brought. Presumably they used the two claimants, with one from the former CRB and the other from the former ISA as ‘specimen cases’.[64]Mr Margo submitted that the issue that I was being asked to determine was what each claimant’s contractual entitlement was when their employment began. This he says, is because the claimant’s evidence from Ms Hunter was that in relation to her contract with the DBS, she has never agreed to a change in contractual hours and is unaware of any collective agreements being reached between the PCS union and the DBS relating to working time. Consequently, neither side had raised any relevant variation to the contracts as part of their respective cases.[65]Mr Cox confirmed that neither claimant’s terms and conditions had altered since they began their employment with the CRB and ISA respectively. However, he argued that both were contracted upon a working week of 42 hours and pay should calculated against those hours and not 37 hours. The implication being that the longer paid working period would reduce the hourly rate payable for each hour worked and for the relevant periods would result in the rate being below the National Minimum Wage applicable at the material time.[66]When referring to the claimants’ contractual entitlement, Mr Margo submitted that the principles of contractual interpretation described by Lord Hoffman in Investors Compensation Scheme Ltd v West Bromwich Building Society and others [1998] WLR 896 (at 912H) is the meaning which the document ‘…would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract’.[67]In terms of events which post dated the contract, he went on to refer to Lord Reid’s guidance given in James Miller & Partners Ltd v Whitworth Estates (Manchester) Ltd [1970] AC 583, (at 603 D-E): “…it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise, one might have the result that a contract meant one thing the day after it was signed, but by reason of subsequent events meant something different a month or a year later.” The point being, unless the parties subsequently agree to a variation of the relevant terms and conditions, events post dating the contract are not relevant.[68]Consequently, Mr Margo submitted that the Tribunal must consider the claimants’ contracts with the CRB and ISA respectively and that express terms relating to hours does not provide paid rest breaks. He acknowledged the considerable documentation identified by the claimants in terms of the historical nature of civil service hours. However, he observed that much of it was from sources such as Hansard which could not reasonably be considered available to the parties at the time of the contracts being signed.[69]Mr Cox referred in his submissions to the DBS Flexible Working Hours Guidance dated February 2017 which describes a 7.4 hour working day and 37 hour working week over 5 days. He conceded that Mr Guilfoyle in evidence had confirmed it was a non contractual document, which did not change the contracts of employment. As I described above, as the parties accepted that the claimants’ terms and conditions had not varied since they started their employment, I considered this document to be not directly relevant, other than that its reference to the prevailing 37 hour working week and it being a continuing feature within the DBS.[70]Mr Cox went on to make submissions about Mr Foy and argued that his contractual terms and conditions stating working hours as 37 hours excluding meal breaks, created an ambiguity as to whether meal breaks are paid or unpaid. Mr Margo said that what was striking about clause 4 of Mr Foy’s contract was that it did not specify the length of meal breaks, which would have been expected had the intention been for them to be paid.[71]In turning to Mrs Kemp’s contract, Mr Cox argued that the reference to ’42 gross hours per week’ must mean that she is paid for working that number of hours each week. Mr Margo noted that while the disclosed extract was not taken from her actual contract, it could be accepted that it reflected her terms and conditions relating to working hours. He submitted that clause 6 sets out that the employee works on a net basis, but it excludes meal breaks of one hour. He added that it refers to ‘gross’ hours which means 37 hours plus 5 hours unpaid meal breaks. He adds that the clause does not expressly say that lunch breaks are payable.[72]Despite a significant bundle of documents having been provided in this case, I agreed that my determination of this case was largely limited to the terms and conditions provided by both claimants.[73]Mr Foy was able to provide his contract of employment enclosing his terms of conditions which applied to him when he began his employment on 28 July 2008. The offer letter dated 15 July 2008 confirmed that the schedule, which was attached summarised the main conditions of service, with any significant changes being notified by reason of ‘CRB Circulars, Home Office Notices, relevant amendments to the Staff Handbook and updates’, (p71). There was no dispute that no relevant changes were notified during his employment with the CRB or the DBS.[74]Pay was set out in clause 3 and was confirmed as being paid monthly in arrears and this pay naturally increased in accordance with awarded pay rises and any progression through the applicable pay grades.[75]The important section was clause 4 relating to ‘Hours’ and this was very brief, amounting to no more than a single sentence. As already stated, it informed Mr Foy that he would work a 5 day week of 37 hours excluding meal breaks. No further mention is made of the duration of the meal breaks and it does not state that they are paid. Importantly they do not specify a period for each break and exclude them from the 37 hours per week. In the absence of any agreement, they would be subject to the minimum 20 minute period as he was contracted to work more than 6 hours each day as required by the Working Time Regulations.[76]However, for the purposes of this claim, I am unable to conclude that when interpreting this clause there can be any reasonable expectation that Mr Foy will be contracted to be paid for more than 37 hours per week, (in respect of his normal working week). He might take lunch breaks of 20 minutes each day or for a longer period of up to an hour, but the contractual clause does not give any reason to persuade me that these breaks form part of his hours against which his pay is calculated against.[77]Mrs Kemp relied upon an extract of a specimen ISA document, but I accepted her evidence and that of Ms Hunter that it provided the relevant terms that she was subject to from when she began her employment on 30 April 2012. Hours were described in clause 6 of the document. They were described as being ‘net conditioned full-time working hours for ISA staff are 37 per week (this excludes daily meal breaks of one hour) making 42 gross hours per week.’[78]In contrast to Mr Foy, the duration of the meal breaks is stipulated at one hour each. But importantly, there was a distinction between gross hours per week and net conditioned hours per week. Meal breaks were excluded and from the plain reading of this document, I concluded the correct interpretation of this clause is that the paid hours are 37 hours per week. Meal breaks while stated as one hour each, fall outside of the hours against which wages are payable. This is consistent with the distinction between gross and net and the use of term ‘excludes’. Had the breaks been subject to payment, I would have expected that to be expressly stated, and this was not the case in this clause.[79]There was a sub clause below clause 6 in this ISA document which referred to overtime and that full time staff are expected to work 42 hours gross and 37 hours net. However, I concluded that this supports the difference between paid working time and unpaid meal breaks. My reading of this section reflects my observations made above that overtime would only be triggered once an employee (assuming they were full time), had worked their normal hours including their 5 hours of meal breaks. This was to avoid circumstances where an employee might forgo lunch breaks and claim that overtime was triggered once the 37 working hours had been worked.[80]While the Flexible Working Hours Guidance dated from 2015 and did not vary the claimants’ Hours under their respective terms and conditions, I did consider these given that both parties referred to them during the hearing. I accepted that it did not form part of the DBS employees’ contract of employment. Significantly, it referred to a standard working day of 7 hours 24 minutes (excluding lunch) leading to a working week of 37 hours for a full time employee. Reference was made to breaks being required for those employees working more than 6 hours per day and which must amount to 30 minutes. This provision appears to be a reflection of the Working Time Regulations requirement to take a minimum break, but insofar as paid work is concerned, it is the 37 hour working week which is relevant, and which is consistent with the claimants’ terms and conditions.[81]I also considered the CRB overtime policy which as discussed above referred to conditioned hours of attendance being 42 hours gross per week which includes a one hour lunch break or net which excludes meal breaks. This document dated from 2007 and would have applied to Mr Foy when he started in 2008. However, this document does not provide any evidence of paid meal breaks. It is a document which describes when overtime is triggered and like the overtime section in Mrs Kemp’s ISA terms and conditions recognises that meal breaks must be included within the working time calculation so that 42 hours at work have been completed before overtime becomes payable. All that this section did was to suggest that the unspecified meal break within clause 4 of Mr Foy’s terms and conditions was expected to be of an hour’s duration.[82]Consequently, while I understood the claimants’ and their union’s concern about the calculation of working time and which hours were paid, I was unable to accept that this amounted to more than 37 hours. Meal breaks were unpaid and there was no express provision to contradict this. It has already been agreed that if the claimants were paid only for the 37 hours per week worked and were not entitled to paid breaks, then their pay would be above the NLW at the material times. For these reasons these complaints are unsuccessful. Time limits[83]While this may be less important given the findings above, I have nonetheless briefly considered this jurisdictional matter. In terms of limitation, I was reminded that early conciliation with ACAS began on 25 September 2024, with an early conciliation certificate being issued on 21 October 2024 (first claimant) and 23 October 2024 (second claimant).[84]Applying the first of these two dates (when early conciliation began on 25 September 2024), means that any deduction which took place before 26 June 2024 will in principle, be out of time.[85]However, the claimants may argue that the earlier payments formed part of a series of deductions with the last of this series being made on or after 26 June 2024. Alternatively, they can argue that it was not reasonably practicable to present the claim (or notify ACAS of a potential claim), within the normal 3 month period from the relevant deduction or last deduction within the relevant series.[86]Mr Margo submitted that the respondent accepts any deduction which were made during the period from April to June 2024 were in time, being part of a series. However, limitation remains an issue he says for those deductions made in 2023.[87]In terms of the question of whether underpayments constitute ‘a series’, he referred to the case of Chief Constable of the Police Service of Northern Ireland & another v Agnew & others [2023] UKSC 33. Essentially, the determination of this matter is a question of fact considering all of the relevant circumstances including the similarities of the deductions and differences, their frequency, size and impact, how they came to be made and applied, what links them together, and all other relevant circumstances.[88]In this case, Mr Margo argued that the shortfall arose in any given year when the rate of the national minimum wage increased, but that the shortfall would be different depending upon level of the increase. When pay rises take place, they would serve to eliminate the shortfall (and this would include backdated pay to eliminate the historic loss). This situation would continue until the national minimum wage increased at a future date and only when it went beyond the hourly rate payable at that time to the claimants and their AO colleagues. Mr Margo also argued that because the backdating would correct any shortfall when measured against the backdating would have been eliminated thereby meaning a declaration for losses cannot be made.[89]Mr Cox accepted that the April 2023 period was a matter of dispute but argued that they formed part of a series which continued until June 2024 because all of the payments were derived from the same hourly rate based on a 42 hour working week.[90]I was grateful to both representatives for their detailed arguments concerning time limits. I accepted that all those deductions claimed from April 2024 could form part of a series given that each deduction arose during consecutive months with no break and the period ended after the key date of 26 June 2024, making them all in time.[91]I acknowledged Mr Cox’s submissions regarding the 2023 deductions, but adopting the relevant circumstances, while they all related to NMW shortfalls and for a period of consecutive months, the shortfall ceased from the pay award made by the respondent later in or around September 2023. Many months elapsed between October 2023 and April 2024 when the next period began. Accordingly, I concluded that the 2023 deductions formed part of a separate series ending in September 2023 from those beginning in April 2024 and are therefore out of time. To be in time, the 2023 deductions would have required a claim to be made (or at least early conciliation commenced), by December 2023. This of course did not happen.[92]I did not hear any arguments from Mr Cox concerning extensions of time on grounds of it not being reasonably practicable to present this 2023 series within the normal time limit provided by section 23 ERA. However, I noted that at all material times the claimants were supported by the PCS who would have been aware of the Tribunal time limits and had they felt it appropriate, they could have recommended the presentation of protective proceedings even if the negotiations with the respondent were still in progress. Consequently, it was reasonably practicable for the 2023 series to have been presented in time.[93]In any event, given my findings in relation to the substantive issue, my decision concerning time limits does not impact upon the determination of this case.