On Monday 10 June 2019, the Court of Appeal ruled in favour of NHS employees working for the East of England Ambulance Service, finding that staff who regularly undertake overtime or work beyond their normal shifts should have these hours taken into account when calculating holiday pay.
The case, N Flowers and others v East of England Ambulance Trust, concerns 13 members of staff working in various roles for the ambulance service, including one paramedic, represented by trade union Unison. The claimants argued that holiday pay should reflect actual hours worked, rather than being based solely on contracted working times.
The claim concerns overtime in two categories: non-guaranteed and voluntary. Non-guaranteed overtime refers to employees working beyond contracted hours to complete a task, while individuals choosing to work extra time to ease pressures on colleagues and boost their own pay counts as voluntary overtime.
The case was originally brought to an Employment Tribunal (ET) and Employment Appeals Tribunal (EAT) in May 2017 and April 2018, respectively. The Court of Appeal upheld the EAT’s 2018 decision. The East of England Ambulance Service now has 28 days in which to decide whether to appeal.
A spokesperson from the East of England Ambulance Service said: “We are committed to offering our staff good rates of pay, a generous holiday entitlement and great working conditions. However, giving careful consideration to the Court of Appeal’s decision, we are not satisfied with the interpretation of the law in either of the [judgments] made.
“We remain concerned at the impact these decisions could have both on ourselves and other NHS employers, and we have instructed our legal representatives to appeal to the Supreme Court on both [judgments].”
NHS pay is decided by the national Agenda for Change scheme, which is subject to an independent review each year.
Clause 13.9 of Agenda for Change states that NHS staff pay during annual leave should include payment for work outside normal hours, and that pay is calculated on the basis of what the individual would have received if they had been at work, based on the previous three months. The Court of Appeal held that this clause should be honoured, and rejected the trust’s argument that a distinction should be drawn between voluntary and non-guaranteed overtime payments.
Dave Prentis, general secretary at Unison, said: “Before today’s judgment, NHS workers who did regular overtime or often worked well beyond their shifts saw a drop in their pay whenever they took a well-deserved break. Leave calculations that weren’t based on the extra shifts and hours they did week in and week out meant many were considerably out of pocket.
“Unison always believed that the rules around NHS pay already allowed for overtime and working beyond the end of a shift to be taken into account when calculating holiday pay. Today’s judgment confirms that, but does highlight another pressing problem. The NHS urgently needs to recruit more staff so existing nurses, paramedics and other health workers don’t have to regularly work overtime simply to keep the service afloat.
“This is a victory for all those health service workers who regularly go the extra mile to make sure we receive the best care possible at all times of the day and night.”
Emlyn Williams, partner, employment, pensions and immigration team at Weightmans, added: “We don’t yet know if this decision will be appealed further by the trust to the Supreme Court. [Employers] may wish to hold back from making changes to the way [they] pay [their] employees until the position is clearer. However, arguably, following such emphatic statements of the law from both the EAT and Court of Appeal, a further successful appeal is unlikely.”