Holiday Pay and Voluntary Overtime

Readers will remember that last November employment law broke the ranks of the obscure blogs and hit the mainstream as the likes of the BBC reported that millions of workers who perform regular overtime could benefit from a claim brought by the Unite Union (alright, the fact that this was a union backed case was not that prevalent).

The case in question was Bear Scotland Ltd & Ors -v- Fulton & Ors. At the risk of gross simplification the case can be summarised by the following example: an employee (let’s call her Emma) has a contract that pays her £500 a week basic pay for 40 hours of work.  However, she is also required by her contract to perform an extra 5 hours a week overtime for which she is paid an additional £100 a week. Therefore, every week she works she receives pay of £600 a week.

Emma has four week’s (28 days) holiday a year. She chooses to take one week’s leave. This case addressed the question of how much she would be paid for that leave: would it be £500 which is her normal basic pay for a week’s work or would it be £600 to include the £100 pay she would received for the overtime she did not need to work but would have done had she not taken a week’s leave?

The case of Bear Scotland was based on the Working Time Regulations. Regulation 13 of these requires that employers must five an employee 28 days leave a year and that this leave must be paid. Regulation 16(1) requires workers are entitled to be paid for annual leave at the rate of a week’s pay in respect of each week of leave – therefore the case turned on what was “a week’s pay”. The EAT found that they had to interpret UK legislation in the light of the Working Time Directive (which the WTR purported to implement) and that, following article 7, the week’s pay should be the normal week’s pay. In Emma’s case, therefore, since she was always paid £600 when working, her pay on her week off should also be £600. If in fact her employer paid her just her normal basic pay on her week off then Emma would have a claim that her employer had made an unlawful deduction from her wages.

That was an important win for many employees and one for which due credit should go to the Unite Union. The fact that the judgement had the potential improve the working lives of British workers can be seen in the haste in which the Coalition Government sought to minimise its impact. At the same time that David Cameron was telling the media that what British workers needs a pay rise his government and which could not find the time to commit to outlawing Caste discrimination because of a lack of parliamentary time, could find the time to introduce the The Deductions from Wages (Limitation) Regulations 2014 to limit the effectiveness of the judgement and so prevent workers making a claim (and potentially receiving a pay rise) for anything more than two years of unlawfully withheld salary.

Voluntary Overtime

As soon as the Bear Scotland decision had been promulgated there was uncertainty over the extent to which the judgement applied to regular voluntary overtime. Suppose, for example, that that Emma’s five hour’s a week overtime is not contractual but just the average amount of overtime she did per week. Should she still be paid £500 or £600 for her week off on holiday? Given the reference to “normal” salary and the similar findings that commission is included in salary (see the judgement of the ECJ in Lock v British Gas Trading Ltd) it seemed likely that it was. However, there has still been no clear decision at appellate level on this question in England and Wales.

Nonetheless, although not binding on English and Welsh Tribunals the decision of the Northern Ireland Court of Appeal on this very issue in Patterson v Castlereagh Borough Council is a strong indication that voluntary overtime should be included in calculations on holiday pay. Mr Patterson averaged four hours a week voluntary overtime but was not paid for this when his holiday pay was calculated. The Court of Appeal, overturning the first tier tribunal, found that normal salary must include average overtime.

Although, as I say, the judgement is not binding on English and Welsh Tribunals the case is a reminder that in a time of wage restraint the Holiday pay rulings whether in respect of contractual or voluntary overtime represent a good organising forum for trade unionists – I am certainly aware of many employers who habitually fail to incorporate voluntary overtime into holiday pay arrangements. We need to alert to such situations as they are ripe for collective organising and claims that not only represent an opportunity for real pay rises for members but also an opportunity to enhance the standing of trade unions in the workplace.


Cases cited:

Lock v British Gas Trading Ltd (Judgment of the Court) [2014] EUECJ C-539/12

Patterson v Castlereagh Borough Council 26 June 2015 NICA

Bear Scotland Ltd & Ors -v- Fulton & Ors [2014] UKEAT 0047_13_0411

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Facility Time: You need to make a request.

For most employers where a trade union is recognised there will be a recognition agreement which will detail processes and rights to time off for union reps. However, when those agreements fall down a reps right to time off is based on legislation itself, in this case section 168 of the Trade Union and Labour Relations (Consolidated) Act 1992.

Because of the prevalence of facility time agreements with employers there has been relatively little caselaw on enforcing the legal rights to time off but my impression since local agreements dealt with disagreements in house. This may well change in the future as employers, especially in the public sector, renege longstanding agreements following the lead from the Cabinet Office’s facility time reviews.

Where this has happened the amount of facility time being taken by reps has drastically decreased, my impression is this is down to uncertainty over how time off must be granted with reps hitherto used to managing time off in concert with the employer (for example, taking every Tuesday off for union activities). The result is that the valuable work that local reps were doing is no longer being done.

This needs to change, and with it a general awareness among reps that time off is not dependent on an agreement with the employer (although that is obviously beneficial) but is a legal obligation.

However, that legal obligation is only engaged when a request is made to the employer which is where many of the current difficulties arise (the requests are not being made in the first place). This was made clear in one of the few judgements on trade union facility time Ryford Ltd v Drinkwater.

Unlike other statutory requests for time off in legislation the legislation does not expressly say that an employee must make a request for time off but in Drinkwater it was found that was implicit in the statute and that a) a request must be made, and b) this request must have come to the attention of the employer:

We have looked at this matter with care and, doing the best we can, we are quite satisfied that the proper construction of s.168, by way of construction of ordinary words of the English language, plainly requires that the employer should know of and be apprised of the request for time off before he can “fail to permit” time off. In our judgment, you can only “permit” or “allow” something if you know what is being asked of you. Similarly, you can only “fail to permit” or “refuse to allow” something if you know what is being asked of you. In our judgment, the concept of permission must import knowledge of a request for permission. We derive assistance from the use of the verb “failed” in the expression “failed to permit”. You can only “fail” to give permission if permission has been sought of you, in our judgment. Similarly, s.172(2) speaks of the employer’s “default” in failing to permit time off.

For those reasons we are satisfied that it is necessary for an employee to establish that his request has come to the notice of the appropriated designated representative of the employers before he can say that the employer has failed to permit him to take time off and, accordingly, that is a necessary prerequisite to his making any claim under s.168(4). We do not think that this question of whether the employer knew of a request for time off can be subsumed under subsection (3) because that subsection is concerned, in our judgment, specifically with the amount, the purpose for which, the occasion on which and the conditions subject to which, time off may be taken. Thus, in our judgment, subsection (3) appears to assume that a request has been made and has come to the notice of the employer so that the employer as well as the employee, can consider the specific matters in subsection (3), namely, questions as to the amount which, the occasions on which, the purposes for which, and the conditions subject to which time off may be taken.

In short, in order to be able to enforce the legal right to time off for trade union duties the rep of a recognised union must be able to show “on the balance of probabilities, that a request was made for time off, that it came to the notice of the employers’ appropriate representative, and that they either refused it, ignored it or failed to respond to it.”

Although a request need not be in writing it is very strongly recommended it should be. The following should be sufficient:

Dear [Appropriate manager]

Request for time off for Trade Union Duties (Section 168 of the Trade Union and Labour Relations (Consolidated) Act 1992).

On [insert date] I am required to undertake trade union duties [insert explanation of duties] which will commence at [insert time]. I estimate this will take approximately [how many hours].

This will be conducted at [insert where the time will be taken].

I would be grateful if you could confirm this time off is approved.


Yours sincerely


A. Rep


Cases Cited:

Ryford Ltd v Drinkwater [1995] UKEAT 723_94_2405

In Defence of Management

As a trade union rep I think it is fair to say that my first instinct is to side with an employee in most situations, fundamentally this is probably derived from experience – it is employees and not the employer who come to me seeking advice and representation along with a preference for the underdog.

Reading the judgement in Begum v Pedagogy Auras however it is difficult to come to any conclusion but the employer acted impeccably throughout and is a model of how to manage what was undoubtedly a difficult situation conscientiously.

In the Qu’ran Muslim women are directed to cover their bodies when outside:

Tell the believing men that they shall subdue their eyes (and not stare at the women), and to maintain their chastity. This is purer for them. God is fully Cognizant of everything they do. And tell the believing women to subdue their eyes, and maintain their chastity. They shall not reveal any parts of their bodies, except that which is necessary. They shall cover their chests, and shall not relax this code in the presence of other than their husbands, their fathers, the fathers of their husbands, their sons, the sons of their husbands, their brothers, the sons of their brothers, the sons of their They shall not strike their feet when they walk in order to shake and reveal certain details of their bodies. All of you shall repent to God, O you believers, that you may succeed.” (Quran 24:30-31)

For this reason many Muslim women choose to wear a Jilbab, a covering that covers most of the body although they come in a variety of lengths and designs. Sometimes they are shorter and a woman’s legs are covered by trousers, sometimes they cover the ankle but do not cover the shoes, sometimes they cover the shoes and touch the floor, sometimes they are flowing garments and sometimes they are not.

The claimant in this case applied for an apprenticeship and evidently did well in the test and interview and was offered a post.

The employer employed 16 workers, four of whom were Muslim women. Despite being a small employer the Nursery accommodated them participating in Friday prayers during working hours and workers were not prohibited from wearing hijabs and jilbabs if they wished to do so.

During the interview it was noticed that the claimant wore a Jilbab (as did other employees) but that it was of the log variety and covered her shoes. The employer was concerned this was an unreasonable health and safety risk (trip hazard) in the workplace which was a nursery so involved young children running around. To address this the employer asked the claimant to ensure that her work attire – which was allowed to be an jilbab – should not be longer than just covering the ankles. This requirement managed the perceived health and safety risks but still allowed the muslim claimant to wear attire that fully covered her from (and including) the ankles upwards.

The claimant did not take the job but claimed the employer’s request was discriminatory on the grounds of religion but this claim failed on two counts: first, that there had been no request not to wear religious garments and two, that the requirement not to wear a jilbab that covers the shoes – even if it did put some Muslim women at a disadvantage – was proportionate. The whole judgement can be read here.

I for one entirely agree. The employer did everything that could reasonably have been expected of them given the nature of the employment and size of the employer.

Cases Cited:

Begum v Pedagogy Auras UK Ltd [2015] UKEAT 0309_13_2205