An employment tribunal has held that voluntary overtime should be included in the calculation of statutory holiday pay.
Brettle v Dudley Metropolitan Borough Council, ET
This case was brought by five lead claimants on behalf of 56 employees who carried out housing repairs for the council. They claimed that their holiday pay had been incorrectly calculated and should have included amounts in respect of voluntary overtime, voluntary standby allowances and voluntary call-out payments. Each of the five lead claimants worked different shift patterns and worked voluntary overtime with differing degrees of regularity.
The tribunal decided, taking into account previous decisions relating to holiday pay, that for most of the claimants the elements relating to voluntary overtime should be included in the calculation of their statutory holiday pay (but only in relation to Regulation 13 annual leave (four weeks), not the additional 1.6 weeks under Regulation 13A).
Although the rotas in question were voluntary, once an employee’s name was on the rota they were required to attend the workplace (or be available if they were on standby). The tribunal was satisfied that the payments were intrinsically linked to the work required to be done under the workers’ contracts of employment, and therefore should be considered part of their normal remuneration. A further hearing will be held to decide what compensation is payable to the claimants.
As a decision of an employment tribunal, it is not binding on other tribunals and is therefore of limited value in determining whether (or how) voluntary overtime should be included in the calculation of holiday pay. However, it is a useful illustration of how a tribunal will apply the previous authorities in practice and supports the prediction of many commentators that voluntary overtime should be included.
Unfortunately we are still waiting for clear judicial authority on exactly how holiday pay should be calculated to include voluntary or non-guaranteed (compulsory) overtime.