Employees who regularly work voluntary overtime beyond their contracted hours could be eligible for holiday pay on that overtime, following the initial ruling in a case that looks likely to add another level of confusion to the ongoing holiday pay debate.

In White & Others v Dudley Metropolitan Borough Council [2016] 1300537/2015, the presiding judge ruled that voluntary overtime, voluntary standby and voluntary call-out payments should be considered “normal pay” when undertaken with “sufficient regularity”, which means they should be reflected when calculating a worker’s holiday pay.

The tradesmen – including plumbers, electricians and carpenters – were invited to work on a Saturday on a purely voluntary basis while working on the council’s stock of social housing. They also elected to go on standby every four weeks, to deal with emergency call-outs and repairs – again, not at the employer’s discretion.

This employee on-call rota and voluntary process had been in place for such a period, and with such regularity, that it had become part of their ‘normal work’ and accordingly part of their ‘normal pay’. The council argued that it did not form part of ‘contractual pay’. But the judge ruled that the payment for that work had to be included in the calculation of holiday pay for the first 20 days of annual leave, under regulation 13 of the Working Time Regulations.

The claimants argued that, although the recent Northern Ireland Court of Appeal case Patterson v Castlereagh Borough Council [2015] IRLR 721 held that payments of a voluntary nature were not necessarily excluded from the calculation of holiday pay, But the tribunal judge accepted the argument that, if the claimants had done overtime on a Saturday for a number of years, and had performed call- out duties voluntarily for a number of years, then payment for it would become part of their normal, expected pay. This might pave the way for claimants who regularly work an extra couple of hours a week, and get paid for those hours, to see this time reflected in their holiday pay,