Flowers v East of England Ambulance Service NHS Trust

Holiday pay under the Working Time Directive must reflect normal remuneration. Voluntary overtime is not excluded merely because the worker is not obliged to accept it. The relevant question is whether the overtime is sufficiently regular and settled to form part of normal remuneration.

A contractual term providing for holiday pay based on what the worker would have received at work may include both non-guaranteed and voluntary overtime.

Ambulance-trust employees challenged holiday-pay calculations under their contractual NHS terms and article 7 of the Working Time Directive 2003/88/EC. They claimed that holiday pay should include non-guaranteed overtime and voluntary overtime.

The Employment Tribunal included non-guaranteed overtime but excluded voluntary overtime. The employees appealed, and the Trust cross-appealed the contractual finding. The issues were whether voluntary overtime could form part of normal remuneration under article 7 and whether clause 13.9 included both categories of overtime.

1. The appeal on the Working Time Directive claim was allowed and the Trust’s cross-appeal was dismissed. Following Dudley Metropolitan Borough Council v Willetts [2018] ICR 31, voluntary overtime is not necessarily outside normal remuneration merely because it is voluntary.
2. Normal remuneration must be maintained during the minimum annual leave period. The relevant question is whether the overtime was sufficiently regular and settled to form part of normal remuneration. The existence of a contractual obligation to work the overtime was not determinative.
3. Bear Scotland Ltd v Fulton [2015] ICR 221 was consistent with that approach and had not decided the voluntary-overtime issue.
4. Clause 13.9 was construed as requiring holiday pay to reflect what the employee would have received had they been at work. “Pay” included overtime, and there was no basis for distinguishing voluntary from non-guaranteed overtime.
5. The claims were remitted to the Employment Tribunal for case-by-case assessment and calculation.

• United Kingdom Supreme Court: The judgment is identified in the key information as [2020] ICR 1141. The supplied text records the operative decision as allowing the employees’ appeal, dismissing the Trust’s cross-appeal and remitting the claims.
• Employment Tribunal: The Tribunal included non-guaranteed overtime but excluded voluntary overtime.