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Recent Holiday Pay Decisions
/ August 2019

Two further holiday pay decisions offer clarification on the holiday pay saga.

Voluntary overtime

In Flowers v East of England Ambulance Trust, the Court of Appeal (‘CA’) held that voluntary overtime should be taken into account when calculating holiday pay if it is sufficiently regular and settled for payments made in respect of it to amount to ‘normal’ remuneration.

Ambulance crew worked overtime and they were free to choose whether or not to do it.  The crew made a holiday pay claim to the Employment Tribunal and argued that their voluntary overtime should count towards their ‘normal’ remuneration and therefore be included in holiday pay.

The CA agreed stating that voluntary overtime should be included if it is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration.

Long-term back pay claims

In the Northern Ireland case of Chief Constable of Northern Ireland v Agnew, the Court of Appeal held that a gap of more than three months in a ‘series’ of deductions does not break that series.

The Claimant argued that the decision in Bear Scotland v Fulton was wrong on this point and a gap of more than three months should not break a series of deductions.  The Northern Ireland Court of Appeal agreed and commented that it could lead to ‘arbitrary and unfair results’.  He decided that if there is sufficient similarity of subject matter, such that each event is factually linked with the next, that would be enough to amount to a series.

This case is not formally binding on the tribunals in England and Wales who are required to follow Bear Scotland but the case will be strongly persuasive on any future appeal arguing that Bear Scotland was wrong on this point.

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