29 July 2015 - Post by:Sheila Fahy
The right to holiday pay, and the components that should be included in the calculation, continue to generate litigation. Case law has already established that guaranteed overtime should be included, as well as non-guaranteed overtime, if it falls within a settled pattern of work over an appropriate reference period.
Voluntary overtime was the latest element to be examined in a case from the Northern Ireland Court of Appeal (Patterson v Castlereagh Borough Council). The Court of Appeal held that voluntary overtime could, as a matter of principle, be included in the calculation of holiday pay, provided it was performed with sufficient regularity so as to be characterised as “normal remuneration”. The case was remitted back to the Tribunal to hear evidence on the overtime actually worked.
This decision is unsurprising, as it simply applies those principles articulated in relation to non-guaranteed overtime in the Bear Scotland case to voluntary overtime. And whilst decisions from the Northern Ireland Court of Appeal are not binding on tribunals in England and Wales, they are persuasive.