East of England Ambulance Service NHS Trust v Flowers and others [2019] EWCA Civ 947

Appeal against the EAT’s decision that voluntary overtime (in addition to non-guaranteed overtime) should be taken into account in the calculation of the Claimants’ holiday pay. Appeal dismissed.

The Claimants are employed by the Appellant and had brought a claim in the ET alleging unlawful deductions from their holiday pay. They contended that their holiday pay should take account of overtime in two categories, known as non-guaranteed overtime and voluntary overtime. The ET held, on the basis of the Claimants' contracts and the Working Time Directive, that the non-guaranteed overtime (typically, extra work undertaken at the end of a shift when the employee is in the middle of carrying out a task which they must see through to the end) should be included, but that the voluntary overtime should not. The Claimants appealed to the EAT, contending that voluntary overtime should be taken into account (under both the contract and the Directive), and the EAT allowed their appeal both on the contractual claims and under the Directive following Dudley MBC v Willetts [2018] ICR 31. The Appellant appealed.

The Court of Appeal held that the EAT had correctly decided that the Claimants had a contractual entitlement to have voluntary overtime taken into account for the purposes of calculating holiday pay, and there was no basis for distinguishing between voluntary and non-guaranteed overtime payments for this purpose. Further, the Court considered that Dudley MBC v Willetts was correctly decided and that the EAT had been right to follow it in this case.


Published: 18/06/2019 13:10

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