The Court of Appeal have found in favour of paramedic Neil Flowers and 12 of his colleagues - who all work for East of England Ambulance Trust covering Norfolk, Suffolk, Essex, Cambridgeshire, Hertfordshire and Bedfordshire. Mr Flowers and colleagues had argued that their holiday pay should reflect the hours they worked - including voluntary overtime - rather than being calculated on their contracted hours.
Lord Justice Bean said:
“The employment tribunal in the present case made no error of law in finding that the remuneration linked to overtime work that was performed on a voluntary basis could be included in normal remuneration for calculating holiday pay.”
Originally, the workers union - Unison - took the case to the Employment Appeal Tribunal (EAT) after they had partly won their employment tribunal cases - but lost the argument for voluntary overtime to be included. Subsequently, EAT ruled that voluntary overtime should also be taken into account when calculating holiday pay, alongside mandatory and non-guaranteed overtime.
Unison stated that as a result of staffing shortages across the NHS, the workers regularly volunteered to work overtime to ease the pressure on their colleagues - and to increase their pay. The union cited the government’s failure to recruit sufficient workers as the reason that working overtime had become the custom for most members of staff.
Dave Prentis - Unison General Secretary - said:
"Before this judgment NHS workers who did regular overtime or often worked well beyond their shifts saw a drop in their pay whenever they took a well-deserved break. Leave calculations that weren't based on the extra shifts and hours they did week in and week out meant many were considerably out of pocket. Unison always believed that the rules around NHS pay already allowed for overtime and working beyond the end of a shift to be taken into account when calculating holiday pay. This judgment confirms that but does highlight another pressing problem. The NHS urgently needs to recruit more staff so existing nurses, paramedics and other health workers don't have to regularly work overtime simply to keep the service afloat. This is a victory for all those health service workers who regularly go the extra mile to make sure we receive the best care possible at all times of the day and night."
Employment lawyers have said that this judgment could have much wider implications for organisations - mainly, but not only - in the public sector, where the employees regularly carry out paid overtime.
Helen Beech - Partner at Clarkslegal - said:
“Where the overtime, voluntary or otherwise, is sufficiently regular and settled, it implies that the employee relies on those payments as part of their regular remuneration, and the loss of such payments would result in a disincentive to take their annual leave which would mean the employer is in breach of the Working Time Regulations.”
She added:
“HR should also be mindful that under the Working Time Regulations, they should not be disincentivising employees from taking their holiday as this could lead to a claim.”
However, Beverley Sunderland - Managing Director of Crossland Employment Solicitors - stated that the ruling “flew in the face of previous cases and the direction of travel for holiday pay”.
She added:
“No doubt there will be numerous cases on exactly what is meant by this.”
More than 100 other cases awaiting hearings as a the result of this judgment may now face a longer wait as the East of England Ambulance Trust said it would be appealing to the Supreme Court and added:
"As a trust we are committed to offering our staff good rates of pay, a generous holiday entitlement and great working conditions."
