Employment e-Brief: The inclusion of voluntary overtime in calculating holiday pay

In ‘Robert Patterson v. Castlereagh Borough Council’ the Northern Irish Court of Appeal has given a ruling on the next issue in the ongoing holiday pay saga. This time the question is whether voluntary overtime, as opposed to compulsory overtime, should be included in “normal remuneration” for the purpose of calculating holiday pay.

Mr Patterson was an assistant plant engineer at the respondent council. During the course of his employment he sometimes carried out voluntary overtime, which he claimed should be included when calculating his holiday pay.

At the first instance Tribunal his claim was rejected. Mr Patterson then appealed. In between the first decision and the appeal, the Employment Appeal Tribunal decision in ‘Bear Scotland’ (Click here to read the related e-Brief) came out, providing guidance on the issue of overtime and holiday pay.

Somewhat frustratingly, the parties in this case agreed the Tribunal had erred on the point of principle that voluntary overtime should not be included in holiday pay. The appeal was instead restricted to whether a particular finding of fact was correct. An argument that voluntary overtime shouldn’t be included in holiday pay probably would have been on a hiding to nothing, but it would have been nice to at least see it debated before the Court.

The parties’ agreement on the point of law rendered the final decision fairly uninteresting, but for what it’s worth the Court accepted the appeal whilst making clear that voluntary overtime should be included in the calculation of holiday pay.

It’s worth noting that Northern Irish decisions are only persuasive in England and Wales, rather than binding, but it would be surprising if a judgment contrary to this one were handed down by a Tribunal over here.

To discuss this e-Brief in more detail, please contact a member of the Employment team.