Should voluntary overtime be taken into account when calculating holiday pay?
Yes, if it is sufficiently regular and settled for payments made in respect of it to amount to 'normal' remuneration, held the Court of Appeal in Flowers v East of England Ambulance Trust.
Various ambulance crew worked 'voluntary' overtime. It was entirely voluntary - they were free to choose whether or not to do it.
On a holiday pay claim to the employment tribunal, the ambulance crew argued that their voluntary overtime should count towards their 'normal' remuneration, and therefore be included in holiday pay.
Lord Justice Bean, delivering the leading judgment, agreed. He stated that voluntary overtime should be counted when calculating holiday pay if it is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration (para 32).
Much of the judgment was taken up with distinguishing an outlier judgment of the CJEU last year, Hein, which appeared to suggest otherwise. It's worth reading (paragraphs 33 onwards).
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