- Voluntary overtime and the calculation of holiday pay in the NHS (Flowers v East of England Ambulance Trust)
- What are the practical implications of this judgment?
- What is the relevant background?
- Background law
- Background facts
- The decision of the employment tribunal
- The appeal and cross-appeal
- What did the EAT decide?
- Case details
Employment analysis: The overarching principle is that normal remuneration must be maintained in respect of the period of annual leave guaranteed by Article 7 of the Working Time Directive 2003/88/EC (WTD). Thus the payments during annual leave under the WTD must correspond to the normal remuneration received while working. For a payment (such as voluntary overtime) to count as ‘normal’ remuneration, for the purposes of a claim for statutory holiday pay under the WTD, it must have been paid over a sufficient period of time. This will be a question of fact and degree. Items which are not usually paid or are exceptional do not count. Items that are usually paid and regular across time may do so. However, under the NHS Terms and Conditions of Service, relevant NHS employees also have a contractual right to have their holiday pay calculated by reference to overtime including voluntary overtime (and, it would appear, not only where that voluntary overtime is so regular and recurring as to be ‘normal’), according to the EAT.
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