What types of overtime should be paid in annual leave calculations?Posted in : Seamus Says - Employment Law Discussion on 5 January 2018
Q. What should be paid in annual leave in the private sector, guaranteed overtime, voluntary overtime, allowances, etc.?
Keywords: Annual Leave; Overtime; Allowances
Scott: Can you give us information about annual leave calculations, travel time in the public sector, constructions and utilities in particular?" I suppose implicit in the question is, does the European court jurisprudence apply in the private sector if legislation has not changed in Northern Ireland or indeed the UK?
Seamus: The position is that there would be no difference in terms of how it would be applied in either sector. Really, we're going back to the Dudley case. We covered this our very first podcast that we did. The basics of Dudley are saying that when it comes to annual leave and holiday pay, that it should be reflective of what the employee is normally working.
So we're talking about a circumstance of the employer looking at the usual position for the employee and our standard position is that we would normally look back across the 12-week period or as it came to Dudley over five weeks, but you're looking at things that are voluntary overtime the employee may be doing and it may be very regularly that they are actually doing 45 hours rather than 40 hours a week so that their holiday pay should be reflective of what the normal and usual position is there. That decision has been very clear in that respect.
Again, nothing specifically here in Northern Ireland about it. We're following the lead from Europe and from the UK, but certainly I don't think that you'd want to put yourself in a position of a test case here in terms of it.
More on Working Time & Leave
- What is the timeframe for exercising a right to paternity leave? What if paternity leave cannot be taken within the timeframe?
- Forcing employees to use up accrued holidays during notice periods/garden leave
- Does Regulation 20(4) of the Working Time Regulations (Northern Ireland) 2016 affect the ability to bring a breach-of-contract claim for holiday pay or overtime?
- Do we need to pay employees for time spent on rest breaks?
- The Harpur Trust v Brazel 
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