Our final case concerns holiday pay and is another Court of Appeal case we have covered at EAT level. Holiday pay has been an ever-expanding issue since the British Gas and Bear Scotland cases nearly five years ago.
In this case the question before the ET was:
Should voluntary overtime be factored into average holiday pay calculations?
In this case, Mr Flowers, the Claimant, was one of many Claimants who worked in ambulance crews for East of England Ambulance Service, the Respondent. The Claimants had two types of overtime; voluntary and over-run.
Over-run occurred when a shift overran due to hospital delays whilst voluntary was, well… voluntary. However, many of the Claimants undertook voluntary overtime on a regular basis at consistent times.
The Claimants started a holiday pay claim believing that their overtime should be included in holiday pay calculations. The ET held that over-run overtime should be included in calculations but not voluntary. However, the EAT went further and stated that voluntary overtime should also be included due to the consistent pattern it was worked.
The Respondent appealed to the Court of Appeal. The CoA rejected the appeal. As the Claimants had a constant pattern of voluntary overtime, it should be counted as part of their normal hours for calculating holiday pay.
The takeaway point:
As all previous cases have showed, holiday pay should be based on normal hours and pay. Normal is not what is contracted but rather what is normal in the employee’s payslip. In this case, despite overtime being voluntary, it was normal for the Claimants to work it.
The Employment Tribunal will not allow a decision that effectively deters employees from taking holiday for fear of being paid less. Likewise, the cost of paying normal holiday is most likely less than the recruitment and employment costs of employing staff to fill the hours which are worked by voluntary overtime.