The EAT held that pay for voluntary overtime could be ‘normal’ pay, which under EU law had to be taken into account in calculating holiday pay.

In Dudley Metropolitan Borough Council v Willetts (bailii,org) the EAT had to consider whether payments received in respect of entirely voluntary overtime could be treated as forming part of a worker’s ‘normal remuneration’ for the purpose of calculating the minimum four weeks paid holiday required by EU law.

The EAT said yes it should be taken into account, if on the facts it was ‘normal’. The EAT particularly pointed out that EU law seeks to ensure a worker does not suffer a financial disadvantage by taking leave, which is liable to deter him from exercising his right.

The facts of this case related to a group of employees, including electricians, plumbers etc, who carried out housing repairs. As well as their set contractual hours, they could perform on-call and additional overtime work which was entirely voluntary. Employees could drop on and off the rotas to suit themselves. The EAT held the tribunal was entitled to find that on the facts the voluntary overtime pay was normal and so should be reflected in holiday pay for the four weeks, even though voluntary overtime was not done most weeks.

More: Paid holiday under working time regulations>Amount of holiday pay.