What do we already know?
In our June Newsletter Case update (4): Holiday pay – what about voluntary overtime? we updated you on the case of Patterson v Castlereagh Borough Council in which the Northern Ireland Court of Appeal had (at that time) reportedly decided that voluntary overtime should be taken into account when calculating holiday pay.
The full judgment has now been published (available here) and we can confirm that the Court of Appeal did say that in principle there is no reason why voluntary overtime should not be included as part of annual leave calculation.
However, the Court then went on to say that it would be a question of fact in each particular case as to whether the voluntary overtime should be included, and this will depend upon whether the overtime is worked with such regularity so as to become part of the employee’s normal remuneration. Unfortunately the Court did not go on to analyse in any detail the circumstances in which voluntary overtime could or should be taken into account.
Although this decision is not binding on English and Welsh Tribunals, it can be persuasive and does open the door for employees to argue for the inclusion of voluntary overtime in their holiday pay.