Various legal sources have confirmed a report by Irish law firm, A&L Goodbody, about the hearing in the NI Court of Appeal in Patterson v Castlereagh Borough Council on 17 June 2015, which considered whether purely voluntary overtime, i.e. overtime that the employer is not obligated to provide, nor the employee obliged to accept, should be included in the calculation of statutory holiday pay. In the case, a NI Industrial Tribunal decided that voluntary overtime should not be included in holiday pay calculations. This was because in its view, the EAT in Bear Scotland & Others v Fulton & Others had decided that non-guaranteed overtime, but which an employee was obliged to work, should be included in statutory holiday pay, but this did not apply to voluntary overtime.

The Court did not accept the tribunal’s interpretation that the Bear case specifically excluded voluntary overtime from holiday pay calculations. The Council, however, conceded that the tribunal had insufficient evidence on the amount of voluntary overtime worked, together with its regularity and nature of the overtime, so the necessary facts were not available to make a meaningful decision on liability. The Council then went on to further concede that there is nothing in principle that stops voluntary overtime falling to be included within the calculation of holiday pay, but only if such voluntary overtime satisfies the key components as to what constitutes “normal remuneration”, i.e. it doesn't matter whether it is guaranteed, non-guaranteed or voluntary overtime, provided it satisfies the characteristics of normal remuneration. The Court accepted the importance of the issue and the far reaching ramifications of its decision, outside the boundaries of Northern Ireland, and judgment was reserved.

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