Holiday pay and voluntary overtime

[guybrush]

I am planning to make a county court claim against my employer within the next few weeks for breach of contract (deductions from wages in regards to holiday pay). Due to holiday pay being paid at my basic number of hours rather than my average earnings which are almost double this.

I am interested to know if anyone is going through the same process or has any idea how the court will treat a claim with no current case law to guide them. I am hoping to claim soon due to the first deduction happening nearly 6 years ago. I am hoping if I make a claim that it will be stayed pending a test case rather than waiting till the issue is resolved.

I had brought the matter up informally with the employer over 2 years ago, they argued the overtime was voluntary and therefore not normal pay so I decided to wait for further developments. I appealed in writing to them in June after the reading about the Patterson v Castlereagh Borough Council appeal in Northern Ireland where the court agreed that there was no reason in principle why voluntary overtime should not be factored into holiday pay calculations. They replied saying that I would receive a response, but they have not yet provided one in over 3 months.

One potential problem appears to be the Deductions from Wages (Limitation Regulations) which came in to force on July 1st, the regulations amend regulation 16 of the Working Time Regulations to prevent breach of contract claims for deductions from holiday pay. Although on another post I read this should not affect claims for contracts made prior to July 1st.

Thanks for reading, please let me know if this seems doomed to fail, I can't find anything about any similar claims which makes me concerned that I'm missing something obvious. There must be a lot of people who have been employed for 6 years+ and who have probably been underpaid who may want to put in a claim soon, it looks like the more overtime voluntary hours that are worked the more likely they are to count as normal hours.

http://www.thesolicitorsgroup.com/Do...ryovertime.pdf
http://www.xperthr.co.uk/faq/when-do...01w0000000uNMa

[vanman]

Re: Holiday pay and voluntary overtime

does your contract say you may be required to work extra hours to suit the needs of the business./or some overtime may be required
if yes then its not voluntary

Limit on a claim for an underpaymentThe introduction of The Deduction from Wages (Limitation) Regulations 2014 means that when making a claim for backdated deductions from wages for holiday pay, a two year cap will be placed on all claims that are brought on or after 1st July 2015. This means that the period that the claim can cover will be limited to a maximum of 2 years.
Voluntary Overtime
Voluntary overtime is where the employer asks the worker to work overtime and the worker is free to turn down the request as there is no contractual obligation on either side to offer or refuse overtime. The question of voluntary overtime has not been directly considered by any recent judgments, so there is currently no definitive case law to suggest that voluntary overtime needs to be taken into account when calculating holiday pay.
http://www.acas.org.uk/index.aspx?articleid=4109

[guybrush]

Re: Holiday pay and voluntary overtime

Thanks for your help Vanman.

I may have been wrong about it being voluntary, the contract states a minimum number of normal hours and also says that actual shift start and end times may vary according to needs of the business, implying non-guaranteed overtime. I was told it was voluntary as I had a right to refuse hours over the minimum in practice though the contract does not mention this.

I am aware of the 2 year limit for tribunal claims which is why I'm trying to claim for breach of contract in the county courts as the deductions limitations 2 year limit is on tribunal claims for deductions from wages, ACAS doesn't mention using the county courts for holiday pay claims, but do for breach of contract with a current employer.

I will see if I can find any help from ACAS etc. Whether I can claim breach of contract for a statutory right I am unsure but my contract includes a term relating to WTR if that helps. For the purposes of the working time regulations, any applicable entitlements and provisions constitute a relevant agreement.