13 July 2018
In Flowers v East of England Ambulance Trust, The Employment Appeal Tribunal has confirmed that voluntary overtime should be included when calculating holiday pay, if it is paid over a sufficient period of time.
The ambulance crew members in this case did both mandatory but non-guaranteed overtime (shift over-run) and voluntary overtime, both of which were irregular. However, the voluntary overtime was not included in their holiday pay calculations.
The principle of the Working Time Directive is that workers are entitled to receive their normal pay when on annual leave. In a claim to the Employment Tribunal, the ambulance crews argued that their voluntary overtime should count towards their normal pay and thus be included in their holiday pay calculation, but purposes the ET rejected their claims. However their appeal to the EAT succeeded. Following a case on which we blogged last year, the EAT confirmed that voluntary overtime was part of normal remuneration if it was paid “over a sufficient period of time. This will be a question of fact and degree. Items which are not usually paid or are exceptional do not count. Items that are usually paid and regular across time may do so”
It will be for tribunals to decide in each case but employers should remember that if a particular type of overtime is recurring, the fact that it is not regular does not prevent it counting towards holiday pay.