Whether voluntary overtime should be included with holiday pay remains undecided. We now have a useful indication from an Employment Tribunal of the way these cases will be decided in future.
This claim was brought by 5 representative claimants, on behalf of 56 employees of Dudley Metropolitan Borough Council. They claimed that voluntary overtime, voluntary standby allowances and voluntary call-out payments should all be included in their holiday pay calculation.
We have reported on previous decisions of the EAT and the European Court which have held, essentially, that all “normal remuneration” should be included in holiday pay. The European Court has provided more detail, saying that “normal remuneration” would include anything that is “intrinsically linked to the performance of the tasks which [the employee] is required to carry out”.
In this case, the Tribunal held that where the overtime etc. is regularly worked, whether volunteered for or not, it should be included in normal, and therefore holiday, pay. Interestingly, one of the Claimants only rarely volunteered, and the Tribunal decided that this should not be included in normal pay, and therefore not be included in holiday pay.
On one reading, this case goes beyond the decisions that we have had already. However, it is arguable that once overtime etc. has been volunteered for, it then needs to be done and is no longer voluntary. This would square it with previous authorities.