Can I get paid overtime while on holiday?
The issue of whether overtime should be considered when calculating holiday pay has recently hit the news, again. This time by the Court of Appeal in the case of East of England Ambulance Service NHS Trust v Flowers [2019] EWCA Civ 947
We have previously commented on the landmark case of Bear Scotland and the Employment Appeal Tribunal’s decision in the case of Dudley MBC v Willetts.
The Court of Appeal have again considered whether voluntary overtime and non-guaranteed overtime should be considered when calculating an employee’s holiday pay. Simply put, the Court of Appeal have said that if either or both voluntary and non-guaranteed overtime are regularly worked then they should be included in the calculation of holiday pay.
Helpfully the following was clarified:
- Non-guaranteed overtime relates to additional hours that may be worked at the end of a shift.
- Voluntary overtime relates to the offer of specific additional hours.
No guidance has been provided by the Court of Appeal on what “regular” means. This remains very much a question of common sense – working overtime on a one off basis would not be regular whereas working overtime hours every week or month would be regular. Every situation should be considered and determined on the facts.
For employers this should be a further reminder that when calculating an employee’s holiday pay attention should be paid to whether regular overtime is worked and paid. An employer could perhaps consider working out the employee’s average weekly earnings over the proceeding 12 weeks to determine how much an employee should be paid whilst on holiday.
For employees that regularly work overtime they should check what they are being paid when on holiday. If no allowance is given in respect of regular overtime then their employer may not have paid them correctly and this may give rise to a claim for unlawful deduction of wages in the Employment Tribunal.
An employee must commence Early Conciliation with ACAS (a mandatory step before taking legal action in the Employment Tribunal) no later than 3 months less 1 day from the date of the deduction/underpayment. Failure to do so could lead to any claim being rejected for being out of time.
It can be possible for an employee to make a claim for a series of underpayments. Any employee who is considering this should note that a claim for a series of deductions can only go back a maximum of 2 years. Employees should also note that if there is a gap between the deductions of 3 months or more then the gap in time may have the effect of breaking the series of deductions.
GA Solicitors has an experienced and specialist employment department which would be happy to assist with any holiday pay issues or queries. Please do not hesitate to contact Rob Zacal on robert.zacal@gasolicitors.com, call 01752 203500 or fill in our contact form.
Rob Zacal, employment solicitor