An employment tribunal has ruled that compulsory overtime performed by ambulance employees when their shift overruns should be included in holiday pay calculations.
In the case of Flowers and Others v East of England Ambulance Trust, ambulance staff brought a claim for unlawful deduction from wages in relation to the way in which the East of England Ambulance Trust calculated their holiday pay.
The claimants argued that overtime that is required when a shift overruns, for example if an emergency occurs at the end of a shift, and pre-planned voluntary overtime should both be taken into consideration when calculating holiday pay.
The employment tribunal, heard on 29 March 2017, found that overtime which occurs as a result of a shift overrunning should be accounted for in holiday pay calculations because it is not open for ambulance staff to leave at the end of their shift if they are in the middle of dealing with an emergency situation.
The tribunal confirmed that this non-guaranteed overtime should be taken into account in determining statutory holiday pay under the Working Time Regulations, maintaining the claim that there has therefore been unauthorised wage deductions from claimants who in the three months prior to any period of leave, undertook non-guaranteed overtime.
However, the employment tribunal found that voluntary overtime is not part of pay for the purposes of calculating annual leave. This is because there is no contractual obligation to undertake voluntary overtime, which varies depending on the job role, the type of work undertaken, and the needs of the organisation.
In the judgement, handed down on 15 May 2017, employment judge Laidler wrote: “All the respondent’s witnesses acknowledged that it was not open to any of the claimants to leave their job at the end of the shift if they were in the middle of an emergency call, be it on the road to an accident or in a call centre. It was an essential requirement of their contractual role that they remain on shift and conclude the matter that they were dealing with. This could be attending to a patient at an accident or a 999 call. This the tribunal is satisfied is part of the claimants’ contractual obligations and as such forms part of their pay.
“The voluntary overtime however, the tribunal is satisfied is of a different category. This is by its very nature voluntary. […] It is not part of pay for the purposes of calculating the claimants' annual leave.”
The tribunal did not deal with matters of remedy in the case. If the matter is not resolved between the involved parties then this will be determined at a remedy hearing.
East of England Ambulance Trust declined to comment at this time.
