Should voluntary overtime be taken into account when calculating holiday pay?
Yes, if it is paid over a sufficient period, held the EAT in Flowers v East of England Ambulance Trust.
Various members of the ambulance crews of EEAT had clauses in their contracts relating to 'non-guaranteed' overtime (which was mandatory but irregular) and 'voluntary' overtime (which was entirely voluntary, and also irregular).
Each member of staff had varying levels of each type of overtime.
On a holiday pay claim to the employment tribunal, the ambulance crews argued that their voluntary overtime should count towards their 'normal' remuneration. On appeal to the EAT, Mr Justice Soole followed Dudley Metropolitan Borough Council v Willetts and held that voluntary overtime was part of normal remuneration if it was paid over a "sufficient period of time". That is a matter of fact for the ET.
An argument from EEAT that Dudley was wrongly decided or distinguishable was rejected.
Thanks to Matthew Jackson of 10 KBW for preparing this case summary.