Some of our clients have told us that they have received a letter from a trade union raising the point of overtime and holiday pay in light of the recent Bear Scotland v Fulton judgment. The Employment Appeal Tribunal, in this case, ruled that employers may need to include overtime hours worked in order to calculate holiday pay.

However, the overtime covered under this ruling is that which the employee is contractually obliged to work. Voluntary overtime, where the employee can freely choose whether to work or not, does not as it currently stands, need to be included in holiday pay calculations.

In cases where overtime may be offered and/or worked with some regularity, provided an employee may at whim decide not to work overtime on any given occasion, or the employer may simply say that they don’t need any overtime worked, this is unlikely to be deemed as contractual overtime. If you receive queries from staff or unions, call our Advice Service for assistance and we can help you create a response to the trade union.