The Court of Appeal have held in Flowers v East of England Ambulance Trust [2019] EWCA Civ 947 that when calculating holiday pay, voluntary overtime should be included if “the pattern of work is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration. There is no separate requirement that the hours of work are compulsory under the contract.”
Whether a particular pattern of voluntary overtime is ‘sufficiently regular and settled’ is an issue that the tribunals will be required to determine on a case-by-case basis.
Employers are advised to be cautious when calculating holiday pay for their staff who regularly work overtime in order to avoid any unlawful deductions from holiday pay claims.
For advice on the above or other Employment Law issues, Lawgistics Members can get advice from the legal team or utilise HR Manager, which is available FREE to all Small Business and Professional members.
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