Case Review: East of England Ambulance Service NHS Trust v Flowers and others
Case Review: East of England Ambulance Service NHS Trust v Flowers and others
In this judgement the Court of Appeal has confirmed that the Working Time Directive (“WTD”) requires that voluntary overtime must to be included in holiday pay calculations if it is “sufficiently regular and settled” to amount to “normal remuneration”.
Background
The case concerned a group of NHS employees who brought claims for unlawful deductions from their holiday pay. Relying on both the WTD and their contractual entitlements, they alleged that their holiday pay should have taken into account two categories of overtime: “non-guaranteed overtime” (a form of compulsory overtime where a task must be completed before the end of a shift); and voluntary overtime.
The Employment Appeal Tribunal (“EAT”) ruled that non-guaranteed and voluntary overtime should both be included in the calculation of the claimants’ holiday pay. The CA has now rejected the NHS Trust employer’s appeal. There is little wriggle room on this point and it is advised that company’s take a clear look at what overtime is being offered, the key issue here for voluntary overtime which is the most wide-reaching is to consider how the overtime is offered and its regularity and check whether this is taken into account when calculating holiday pay, as failure to appropriately calculate could result in class actions and claims for historic underpayment claims.
Posted on 07/04/2019 by Ortolan
