The WRC held that an employee had been underpaid for five public holidays, finding no evidence that his public-holiday entitlements were lawfully “rolled up” into his regular pay despite the employer’s TUPE-based defence.

The Complainant worked as a stevedore from March 2008 to March 2025. For circa thirteen years he received separate pay for public holidays. After transferring location, the Respondent ceased paying distinct public-holiday amounts. When he queried it in 2021, he was paid for seven months. When he queried it again, he was told public-holiday pay was now “rolled into” his salary. He stated he was never formally notified of such a change and, although initially reluctant to lodge a claim, he ultimately sought payment for all public holidays from 2021 onward. He produced his 2008 contract. This provided that if rostered ‘off’ on a bank holiday, then he was entitled to an extra day’s pay. If rostered ‘on’, double time applied.  If rostered off but worked, double time applied for the hours worked. He maintained no separate payments appeared on payslips within the relevant period (save for the new public holiday in February 2025).

The Respondent said the Complainant’s line ran every day except Christmas Day. It asserted that, following a 2017 TUPE transfer, employees were paid fortnightly for 78 hours (39 per week) but rostered to work 36.75 hours, i.e., creating a 2.25-hour weekly surplus intended to cover public holidays. Historically there were nine public holidays (94.5 hours), leaving a small annual surplus the Respondent chose not to recoup. When an additional public holiday arose, the Respondent said it paid that day separately. It submitted that this inherited, rolled-up structure had been accepted through the TUPE transfer, involved union representation, and was more advantageous than the statutory method. It considered that changing the method would breach the transfer agreement.

The Adjudicating Officer found six public holidays occurred. They noted the Respondent relied on a system allegedly established under TUPE but furnished no substantive agreement / evidence proving that public-holiday entitlements were subsumed in regular pay. By contrast, the Complainant’s contract expressly provided public-holiday entitlements. The Adjudicator found that five public holidays remained unpaid and held the complaint well-founded and directed payment of €704 (gross).

Employers should:            

•  Note, where public-holiday pay is ‘rolled up’ or annualised, document the mechanism clearly.  Identify the hours uplift, the calculation that links the uplift, and how any additional public holidays are handled. Reflect this in contracts, pay policies, and itemised payslips. Also note, TUPE does not cure ambiguity.   
  
  
• Audit payroll for traceability. Even if you annualise, employees (and inspectors) should be able to reconcile that public-holiday pay has been provided. Absence of such evidence will usually defeat a rolled-up defence. 
  
  
• When terms appear to shift, issue a s.5 Notice (in accordance with the Terms of Employment (Information) Acts 1994) confirming the nature and effective date of any change, consult with employees/union, and confirm how public holidays will be paid. Train supervisors to avoid ad hoc explanations; route all pay-entitlement queries through HR/payroll with a written response that can be produced at a hearing. 
  

The full case can be found here.