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Patterson v Castlereagh Borough Council  NICA 47; (2015) EMPLR 049
26 June 2015
Court of Appeal in Northern Ireland
Morgan LCJ, Girvan and Gillen LJJ
Bear Scotland Limited and others v Fulton and others established that payment for non-guaranteed overtime, which employees are required to work if requested, must be taken into account when calculating holiday pay. This case establishes that pay for voluntary overtime must also be taken into account if the employee normally works overtime and so normally receives overtime pay.
P worked full-time as an Assistant Plant Engineer. He undertook some voluntary overtime - ie overtime which he was offered but which he did not have to accept. He claimed that his voluntary overtime pay should be included in the calculation of holiday pay.
The Court of Appeal in Northern Ireland (which is not binding in England, Scotland and Wales but is likely to be followed) relied on the EAT’s analysis in Bear Scotland and on the ECJ’s decision in Williams v British Airways. The ECJ held that holiday pay should reflect what the employee normally earns, excluding payments covering ‘occasional or ancillary costs’. The meaning of ‘occasional or ancillary costs’ is unclear but the ECJ had held that a supplement to cover the cost of time spent by pilots away from home fell within the phrase as so was excluded from holiday pay.
The question, therefore, was what P normally earned: ‘….if he comes to expect a certain level of pay as normal, then he should receive that during his holiday period’. The case was remitted to the tribunal to decide whether, applying that rule, his holiday pay should include his voluntary overtime pay.