In last week’s News Update we reported that the NI Court of Appeal had heard the appeal in Patterson v Castlereagh Borough Council. The Council conceded that in principle there is nothing that stops voluntary overtime falling to be included within the calculation of statutory holiday pay, if such voluntary overtime constitutes “normal remuneration”. The NI CA judgment is now available and the Court has decided that, in the light of previous ECJ case law and the entry in Harvey on Industrial Relations at H [871.07] (see Para 18), ‘in principle’, there is no reason why voluntary overtime should not be included as 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 the 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 case has been be remitted to the tribunal for it to hear further evidence about the overtime actually worked within a suitable reference period and to make a determination on the correct principles. The decision does not create a precedent in England, Wales and Scotland, but it provides a very convincing statement about the legal principles involved. Employers should therefore take legal advice on whether voluntary overtime could be viewed to be a part of normal remuneration and so included in the calculation of statutory holiday pay.
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The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
