Non-Guaranteed and Voluntary Overtime to be included in holiday pay calculation

In Flowers and ors v East of England Ambulance Trust, the Employment Appeal Tribunal (EAT), reaffirmed its earlier decision that the EU Working Time Directive requires that voluntary overtime be included in the calculation of holiday pay where there is a pattern of working which is sufficiently regular and settled to count as part of an employee’s normal remuneration.

The case involved two categories of overtime, non-guaranteed and voluntary overtime. The former arises when, at the end of a shift, an employee is in the middle of a task that must be seen through to completion. The latter arises when an employee volunteers to work extra shifts.A clause in the NHS Terms and Conditions of Service states that holiday pay is calculated on the basis of what an employee would have received had he or she been at work. The EAT held that this clause gave employees a contractual entitlement to have both non-guaranteed and voluntary overtime included in the calculation.
In arriving at this finding the EAT observed that it made obvious sense for the contract to march in step with the Directive so far as possible and reaffirmed the overarching principle that normal remuneration must be maintained in respect of the period of annual leave.