Sarah King Employment Solicitor Northampton

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You are here: Home / Archives for working time directive

Holiday pay and voluntary overtime

25/07/2018 by Sarah King Leave a Comment

holiday pay and overtimeIn what is the latest in a number of holiday pay cases, the EAT has held that the NHS must include any overtime pay earned in the reference period in the calculation of holiday pay.  This includes both non-guaranteed and voluntary overtime. 

The case of Flowers and others v East of England Ambulance Trust UKEAT/0235/17 which concerned NHS staff working under clause 13.9 of the NHS Terms and Conditions of Service (Agenda for Change).  The EAT held that this should be interpreted as requiring any overtime pay earned in the three months (or any other reference period agreed) before the employee took annual leave to be included in the calculation of their holiday pay. This should include both non-guaranteed and voluntary overtime pay, regardless of whether an employee is contractually required to work the overtime or any pattern to it being worked.

The EAT held that both non-guaranteed and voluntary overtime pay should be taken into account when calculating the four weeks’ paid leave under Article 7 of the Working Time Directive following previous decisions that this should be the case so long as the payments are sufficiently regular and paid over a sufficient period. Following Dudley Metropolitan Borough Council v Willetts and others UKEAT/0334/16, the EAT held that the overarching principle of EU case law is that holiday pay must correspond to normal remuneration and therefore the employee should not be penalised for being on leave.  This rationale would follow the other holiday pay cases concerning commission. 

Watch this space as it is understood that the Trust is going to appeal this decision.

Tag(s): holiday pay, holiday pay cases, overtime and holiday pay, should I get overtime whilst on holiday, working time directive, working time regulation holiday

Failure to provide rest breaks

24/10/2016 by Sarah King Leave a Comment

working timeAn employee (and in fact a worker!) can bring a claim in the Employment Tribunal for a failure to provide rest breaks under the Working Time Regulations 1998. In practice stand-alone claims are rare but they can sometimes form the basis of a factual matrix with other claims or which support other claims. Regulation 30 of the WTR 1998 provides the remedy for such claims which requires the tribunal to focus on the employer’s default, in refusing to permit the worker to exercise the relevant right, and any economic loss sustained by the worker.

In the recent case of Gomes v Higher Level Care Ltd, the Claimant was entitled to compensation after her employer failed to provide her with 20-minute rest breaks in her shifts which exceeded 6 hours in length. This was a direct breach of Regulation 12 (1) of the Working Time Regulations 1998. However, the EAT has held that compensation for injury to feelings is not available for a failure to provide rest breaks under the Working Time Regulations 1998 because there was no express statutory basis for an award of this type. The EAT rejected a series of arguments to the effect that either UK or EU law required compensation to be paid for injury to feelings, noting that compensation to a worker for a breach of the entitlement to rest breaks was akin to a claim for breach of contract, although an award takes into account any loss sustained by the worker and the default of the employer in not allowing rest breaks. The EAT noted that a claim for compensation for damage to health might be made, e.g. if a worker were made ill by a lack of rest breaks. Nothing in the Directive or EU law provides for compensation for injury to feelings for this right, nor does UK law.

Tag(s): claim uner working time, rest breaks, right to rest break, working time, working time directive, working time regulations

Working time holiday

30/07/2013 by Sarah King Leave a Comment

You may recall all the controversy over the decisions from the ECJ over statutory holiday under the Working Time Directive and the Regulations implemented in the UK.  In particular, this centred around whether employees who were off sick accrued working time holiday and whether this should be paid or rolled over. The decisions kept employment lawyers on their toes with many u-turns.

There have been two recent decisions on this topic. The first is from the EAT in the case of Sood Enterprises Ltd v Healy.  The Court of Appeal last year, in NHS Leeds v Larner, decided that it was possible to interpret the WTR in line with the WT Directive and allow the carry over of statutory holiday where the employee had been off sick in the relevant leave year and thus unable to take holiday.  Payment was permitted for this leave on termination otherwise it carried over into the next holiday year. This was in respect of the 4 weeks leave under Regulation 13.  The position in respect of the additional 1.6 weeks leave was less clear.  This was provided as an addition to the Regulations (Regulation 13A) a few years back when statutory holiday went from 20 to 28 days.  The Court in Larner declined to decide whether this additional 1.6 weeks should be treated in the same way as the 4 weeks until a case came along. Well now one has!

The EAT in the latest Sood case decided that the additional leave under Regulation 13A was in excess of the 4 weeks minimum set out in the Directive.  It was therefore a domestic provision which did not fall foul of EC law as the recent ECJ decisions have made it clear that member states can set their own conditions on the payment of leave in excess of the 4 weeks minimum requirement set out in the Directive.

Accordingly, the EAT held that in the absence of an express agreement to carry his 2010 leave over as provided for in Regulation 13A, there was no requirement for it to be carried over. Mr Healy therefore fell foul of the use it or lose it provisions and lost his payment for this additional leave for 2010 on termination of employment.

The second working time holiday case is only an Employment Tribunal decision, so not binding authority, but of interest nevertheless on the subject of payment for holiday.  The case centred around the payment for the Regulation 13 holiday (4 weeks minimum) and the Tribunal ruled that this calculation should have taken into account overtime payments when calculating holiday pay.  Under Regulation 16 of the WTR a weeks pay for these purposes uses the ERA definition.  This would mean that voluntary overtime payments and overtime premiums would be excluded.

However, in this case, the Tribunal found that following Williams and others v British Airways Plc in the ECJ in 2011, employees are entitled to receive their normal remuneration for holiday pay. Normal remuneration included overtime payments where the employee was carrying out his normal role and therefore the fact that the employee had volunteered to do this outside of his normal contracted hours did not prevent these sums from being added to calculate his holiday pay. It will be interesting to see whether this interpretation of the WTR will be the subject of an appeal

Tag(s): acrruing holiday whilst off sick, holiday pay, statutory holiday pay, working time directive, working time holiday, working time regulations

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