Holiday Pay – NHS Payments

Flowers and Others v East of England Ambulance Trust: NHS Contractual Terms Require Non-Guaranteed and Voluntary Overtime to be Included in Holiday Pay Calculations

This case arose from the Claimant employees, employed by the Trust in a range of roles concerning the provision of ambulance services, contending that the calculation of their holiday pay should take account of both non-guaranteed overtime and voluntary overtime.

The Employment Tribunal (“ET”) allowed the contractual claims in respect of non-guaranteed overtime, but dismissed the claims in respect of voluntary overtime, with the ET accepting the Trust’s argument that voluntary overtime was in a different category. The Claimants appealed and the Respondent cross appealed.

Three Person Looking at X-ray Result

On Appeal the Employment Appeal Tribunal (“EAT”) considered the particular provision of the NHS terms and conditions of service. This clause at 13.9 states as follows: 

“Pay during annual leave will include regularly paid supplements, including any recruitment and retention premia, payments for work outside normal hours and high cost area supplements. Pay is calculated on the basis of what the individual would have received had he/she been at work. This would be based on the previous three months at work or any other reference period that may be locally agreed.”

The EAT established that on its proper construction, clause 13.9 included voluntary overtime and provided the basis of calculation. They go on to say, once an agreed shift or voluntary overtime began, the employee was performing tasks required of him or her under the contract of employment. It therefore follows that these additional hours worked should be considered “pay” for the purposes of the above clause, and thus factored into holiday pay calculations.

Please note, this applies to NHS staff employed under the 2004 Agenda for Change contracts, and not to those NHS staff employed in the wider context, such as GPs. If you have any questions on the application of this decision, please contact the Employment Team who would be happy to help.