The Northern Irish Court of Appeal gives a limited ruling on the ongoing question of whether voluntary overtime should be included in holiday pay.
Mr Patterson is the lead claimant in a multiple claim against Castlereagh Borough Council in Northern Ireland. One of the issues in dispute is whether his holiday pay is calculated correctly, in that it does not take account of voluntary overtime.
The Northern Irish Industrial Tribunal gave its judgment in November 2014. They interpreted the relevant case-law (Williams v BA, Lock v British Gas and Bear Scotland) as saying that voluntary overtime was out of scope of the payments to be included in holiday pay.
The claimant appealed and the case went straight to the Northern Irish Court of Appeal, since there is no equivalent of the Employment Appeal Tribunal in Northern Ireland.
Before the Northern Irish Court of Appeal, counsel for the employer conceded that the Tribunal was wrong and that there is no such principle that voluntary overtime is to be excluded. In its brief judgment, the Northern Irish Court of Appeal agrees, saying:
“[Counsel for the employer] correctly conceded that in principle there is no reason why voluntary overtime should not be included as a part of a determination of entitlement to paid annual leave. It will be a question of fact for each Tribunal to determine whether or not that voluntary overtime was normally carried out by the worker and carried with it the appropriately permanent feature of the remuneration to trigger its inclusion in the calculation”.
The Court remitted the case to the Tribunal to hear further evidence of the overtime actually worked in this case.
Decisions of the Northern Irish Court of Appeal are not technically binding in Great Britain, but are normally seen as persuasive.
This decision will not encourage employers holding out for an employer-friendly ruling on voluntary overtime. However, the Northern Irish Court of Appeal was at great pains to point out that fuller arguments on the issue of voluntary overtime might come before the courts in future. This ruling simply clarifies what has not been decided so far: no court has so far ruled that voluntary overtime is out of scope.
EEF’s view is that voluntary overtime which is worked as a normal course is likely to fall in scope for all workers (it is already included for workers who have no normal hours of work). For a summary of the wider impact of the holiday rulings, see the article - 'EAT publishes holiday pay judgment'. EEF members should call us for further support.