Regularly worked voluntary overtime should be included in holiday pay calculation

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.

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