Employers whose employees are required to work overtime after their shift has ended, in order to finish off work on emergency or other matters, should ensure they include such overtime when calculating employees’ holiday pay under the Working Time Regulations, a ruling makes clear.
Ambulance staff claimed unlawful deductions from wages on grounds that their employer had failed to take non-guaranteed overtime into account when calculating their holiday pay.
They did two types of overtime – pre-planned, voluntary overtime, and overtime required after the end of a shift (for example, because an emergency near the end of a shift meant the shift overran).
The Employment Tribunal (ET) ruled that the overtime required when a shift overran should have been taken into account when calculating holiday pay because the ambulance staff had no choice whether or not to work it. Their contractual role required them to continue their shift until emergencies had been concluded. Such non-guaranteed overtime, where the employer is not required to offer the overtime but the employee is required to work it, should be taken into account.
The ET ruled, however, that the voluntary, pre-planned overtime should not be taken into account in this case. Such overtime could only be taken into account if either of the employees were required to work it, or there was a pattern of such overtime being worked, so that it could be considered ‘regular’ or ‘normal’. There was no compulsion to work it, and no evidence of such a pattern – so it was not ‘normal’.
Employers whose employees are required to work overtime after their shift has ended, in order to finish off work on emergency or other matters that have arisen during their shift, should ensure they include such overtime when calculating their employees’ holiday pay under the Working Time Regulations
Case law: Flowers v East of England Ambulance Trust Case No: 3400310/2015
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Jonathan Waters is the founder of Helix Law. Before qualifying as a Solicitor he worked in industry and in investment banking for over a decade. He was also the Partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. Jonathan has wide experience of helping and advising businesses to avoid or to deal with commercial disputes and in particular construction disputes.
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