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Regularly worked voluntary overtime should be included in holiday pay calculation

Makbool Javaid

In East of England Ambulance Service NHS Trust v Flowers and ors, the employees presented claims for unlawful deductions from wages contending that the calculation of their holiday pay should take non-guaranteed overtime (NGO) and voluntary overtime (VO) into account. They argued that their contractual terms required both types of overtime to be included, i.e. Clause 13.9 reads: “Pay during annual leave will include regularly paid supplements, including … payment for work outside normal hours …”. In addition, the Working Time Directive (WTD) had been breached because the ECJ had ruled that the WTD requires that workers receive their ‘normal’ remuneration during their statutory holiday period. The Court of Appeal agreed with the EAT that both claims were valid. Under Clause 13.9, the employees had a contractual entitlement to have NGO and VO taken into account when calculating their holiday pay and there was no basis for distinguishing between either. As for EU law, NGO and VO can be taken into account provided that the pattern of work extends for a sufficient period of time and payments for each type of overtime are sufficiently regular so as to amount to ‘normal’ remuneration.

The updates are kindly provided by Simons Muirhead & Burton Law firm

This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and help judgments made in every aspect of the case. Click on the links to access full details. If no link is provided, contact us for more information.  Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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