CIPD People Management report that in White & Others v Dudley Metropolitan Borough Council, an employment judge ruled that voluntary overtime, voluntary standby and voluntary call-out payments should be considered “normal pay” when undertaken with “sufficient regularity”, and therefore included in calculating a worker’s statutory holiday pay.

The Claimants were invited to work on a Saturday on a purely voluntary basis while working on the council’s stock of social housing. They also elected to go on standby every four weeks, to deal with emergency call-outs and repairs – again, not at the employer’s discretion. The Claimants argued that the employee on-call rota and voluntary process had been in place for such a period, and with such regularity, that it had become part of their ‘normal work’ and accordingly part of their ‘normal pay’.

The judge decided that, if the claimants had done overtime on a Saturday for a number of years, and had performed call-out duties voluntarily for a number of years, then payment for it would become part of their normal, expected pay and therefore the payment for that work had to be included in the calculation of holiday pay for the first 20 days of annual leave, under Regulation 13 of the Working Time Regulations.

It is already established that payment for overtime that workers are obliged to work, whether not it is contractually guaranteed, must be included in the statutory holiday pay calculation.  But this decision goes further and follows the NI Court of Appeal ruling in Patterson v Castlereagh Borough Council, which held that there was no reason in principle why voluntary overtime should not be included in statutory holiday pay where it forms part of the normal remuneration received by a worker.

A tribunal judgment does not set a precedent and is not binding on other tribunals. In addition, the Council may decide to appeal. However, as Jonathan Gidney, barrister at St Philips Chambers, who represented the claimants points out, this case might pave the way for claimants who regularly work an extra couple of hours a week voluntarily, and get paid for those hours, to claim that this time should be reflected in their holiday pay. It will then be for a tribunal to decide if voluntary overtime is worked so regularly, that it has become ‘normal’ and therefore the overtime pay forms part of the worker’s ‘normal remuneration’.

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