Holiday Pay: should voluntary overtime be included?
Yes, if it’s paid over a sufficient period.
In the recent case of Flowers v East of England Ambulance Trust the EAT had to consider whether to include voluntary overtime in its holiday pay calculation. The Claimant employees were all employed by the Trust in a range of roles concerned with the provision of ambulance services. The issue was whether their holiday pay should take account of overtime falling within two categories: non-guaranteed overtime (also known as shift overrun payments which related to times when there was a requirement to continue working so that patient care was not compromised) and wholly voluntary overtime. It was eventually conceded by the Trust that the non-guaranteed overtime should be taken into account, but they challenged the inclusion of purely voluntary overtime.
The EAT found that the overarching principle is that normal remuneration must be maintained in respect of annual leave to ensure that a worker does not, by taking leave, suffer a financial disadvantage which may deter him from exercising that right. Payments in respect of overtime (whether that is compulsory, non-guaranteed, or voluntary) constitute remuneration. For a payment to count as ‘normal’ it must have been paid over a sufficient period of time – this will be a question of fact and degree. The indication given, whilst not precise, was that voluntary overtime worked one in every four or five weeks would be sufficiently regular to count as ‘normal’ and should be included.
This does not neatly answer all the issues for practitioners, but what is clear is that:
- Guaranteed overtime should always be included in holiday pay calculations.
- Non-guaranteed overtime, which is compulsory when offered, should also always be included.
Purely voluntary overtime, where there is no obligation to offer it and no obligation to do it if offered, should be included if it is sufficiently regular or recurring so as to qualify as ‘normal’.
For more information, please contact Nick Hurley.
Flexible working requests: 5 tips for employers
Charles Russell Speechlys advises Acora on acquisition of Westgate IT
Westgate IT specialises in providing IT support to businesses in the South West.
Nick Hurley quoted by the Society for HR Management on the UK government's proposals to prevent workplace sexual harassment
The U.K. government introduced legislation in July 2021 for employers to take proactive steps to prevent sexual harassment on the job.
Returning to work post-lockdown: FAQs for employers
We look at some of the main issues employers may face and the key steps to consider as restrictions ease.
Covid passports - are they workable or just a shambles?
Amelia Goodwin writes for Civil Society on a recent employment tribunal ruling which found that anxiety constitutes a disability
The tribunal found that an anxiety state constitutes a disability for the purposes of the Equality Act 2010.
Face coverings at work post lockdown
While the legal requirement has been lifted, employers may consider face coverings as an appropriate safety measure in certain workplaces.
Charles Russell Speechlys advises Apposite Capital on acquisition of i2a Diagnostics
i2a is a leading provider of laboratory instruments, software and reagents for the clinical microbiology market in France.
Brace yourselves: dentists could be liable for actions of self-employed staff
Nick Hurley interviewed by GB News on the legal ramifications of employers insisting employees have the COVID-19 vaccine
Nick considers the potential dangers of employers setting a precedent by adopting a 'No Jab, No Job' policy.
Government to introduce duty on employers to prevent sexual harassment
Record success for Charles Russell Speechlys’ Private Wealth practice in Chambers HNW 2021 directory
We are delighted to have once again been recognised as a leader in our field in the Chambers High Net Worth 2021 Guide.
Michael Powner writes for People Management and explains how employers can carry out an equal pay audit
How do employers carry out an equal pay audit?
COVID-19 Vaccination – can an employer make it compulsory for employees?
We review what legal issues to take into account when considering to make vaccination compulsory as an employer.
Changes to Right to Work Checks from 1 July 2021
EEA citizens and their family members are required to evidence immigration status in the UK, in the same way as other foreign nationals.
Changes to Right to Rent Checks from 1 July 2021
Following the UK’s departure from the EU, the right to rent checks grace period of six months will end on 30 June.
Michael Powner and Laurence Whymark write for The Caterer on the implications of the new tipping laws on the hospitality industry
Operators will soon have to pass on tips to staff without deductions.
Post-Brexit business visitors and working in France, Germany, Spain and the UK
Watch the final session in a series of webinars on post-Brexit mobility.
Top 7 Data Protection Tips for Employers
Here are our top 7 data protection tips for employers.
Nick Hurley quoted by the Daily Mirror on the legal implications of implementing a 'No Jab, No Job' policy
"'No jab, no job' may seem clear and concise, but whether an employer can make it mandatory is far from straightforward.