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You will no doubt have heard of a number of holiday pay cases that have been decided by Employment Tribunals in recent years. Perhaps the “Bear Scotland” decision is the one most recognisable.
21 July 2017
Insight
The Tribunals’ decisions in these cases have changed the landscape of holiday pay somewhat.
The decisions dictate what employers are expected to pay their employees whilst on annual leave.
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It is no longer the case that employees should receive just their basic salary during holidays.
Employees are now entitled to their ‘normal pay’ whilst they are away on holiday. This means that they are entitled to the same pay they would have received had they been at work.
An employee’s normal pay means payments:
This comes into play when employees are earning ‘extra’ payments on top of their basic salary; for instance, where employees earn things like commission and overtime and so on.
The idea behind the decisions is that employees should not be deterred from taking annual leave through fear of missing out on extra payments that they could earn if they stay at work.
In a case discussed by the Tribunal, voluntary overtime (i.e. overtime that an employee can volunteer to perform, but is under no obligation to perform) was contested as to whether it should be classed as ‘normal pay’ for the purposes of calculating holiday pay.
The Tribunal decided, yes, voluntary overtime should form part of the holiday pay calculation and should be factored in when paying an employee during their annual leave.
This is the first decision that is binding on the Tribunal’s regarding voluntary overtime, and it is a significant one.
This decision establishes that, if you have employees that are carrying out voluntary overtime on a relatively regular basis, then it is very likely such payments should also be factored into their holiday pay calculations.
The case this decision has come from is called Dudley Metropolitan Borough Council v Willetts.
The employees were Quick Response Operatives working for the Council (electricians, plumbers, roofers etcetera). In addition to their standard hours, they also had the option of working entirely voluntary overtime. The employees could drop on and off the rotas to suit themselves. If they took the overtime up, they received additional standby and callout allowances, but the employer could not force the employees to do the overtime.
In deciding this case, the Tribunal found that:
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