Holiday appeals found in favour of employees – non-voluntary overtime must be included

The EAT has handed down judgment in the joint appeals of the Bear Scotland, Hertel and Amec cases. The judgment confirms that workers have the right under Article 7 of the Working Time Directive (WTD) to be paid “normal remuneration” during their 4 weeks “EU leave”.

Calculating holiday pay must therefore be calculated based on typical average pay and not based only upon basic hours’ pay, which has been the long established position under the UK’s Working Time Regulations (WTR).

In all of the appeals before the EAT, the facts concerned non-voluntary overtime.  This therefore leaves the door open to further case law to seek clarity over the degree to which overtime must be “voluntary” and the regularity with which such overtime would need to be performed to conclude that it falls within a worker’s “normal remuneration”.

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.


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Hannah Robbins

Partner - Head of Healthcare

I am a very experienced employment lawyer and advocate in tribunal. I act on the full range of contentious and non-contentious employment issues.