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Employer’s own contract required voluntary overtime to be included in holiday pay

Makbool Javaid

In Flowers and Ors v East England Ambulance Trust, the Trust resisted claims that voluntary overtime should be included in calculations for holiday pay, only to discover that the entitlement already existed according to the  NHS terms and conditions of service. The critical contractual clause read: “Pay during annual leave will include regularly paid supplements, including any recruitment and retention premia, payments for work outside normal hours and high cost area supplements. Pay is calculated on the basis of what the individual would have received had he/she been at work. This would be based on the previous three months at work or any other reference period that may be locally agreed.” The EAT held that on its proper construction, the wording in the terms and conditions, (in particular the words in italics), clearly gave the right to voluntary overtime to be included in holiday pay (the right to non-guaranteed overtime having already been conceded) and provided the basis for the calculation.

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