Regular readers will be aware that the Bear Scotland case gave a sense of security to employers when the Employment Appeals Tribunal (EAT) ruled that non-guaranteed overtime (where the employer is not obliged to provide overtime but the employee is obliged to work it if asked) is required to be paid during annual leave as a form of “normal remuneration”. This impliedly left voluntary overtime (where both the employer and employee are equally not obliged to offer or work overtime if they do not wish to arrange such) out of the holiday pay calculation.
However, this sense of security has been short lived. The fact that the question on voluntary overtime was left unanswered has naturally enticed a future tribunal to include voluntary overtime in the calculation of holiday pay under the Working Time Directive (WTD). This was always going to happen and really it was just a matter of when.
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