Is full pay (inclusive of a standard overnight allowance) due when employee is on annual leave?

Posted in : Seamus Says - Employment Law Discussion on 9 April 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Working Time Regulations; National Minimum Wage

"We've got HGV drivers and they get net £140 per day inclusive of standard overnight allowance which is approximately net £26.20. When they are on holiday, this allowance is deducted. There may be occasions when they get £140 regardless of the need to sleep over when working. Would this entire full pay of £140 be due during leave?"

Seamus:  I think that the position is that were the payment, seems to be that there's a payment included for the enhancement essentially in relation to where they are, not working, but sleeping is part of the role because they can only drive for a certain amount of time. If that forms part of their normal pay when it comes to holidays, that should be considered as part of their normal pay would be my thoughts without giving it too much thought, but just sort of off the cuff, that would be my gut reaction to it.

Scott: It's similar to the British Airways case from years ago that started off all the working time claims there. Williams, if I remember, British Airways and Williams, you know, where they were given a flight allowance but when they went on holidays, they didn't receive their flight allowance because they weren't flying. And it's seen as a disincentive to take holidays because you're not getting your normal pay, so I think, yeah, if somebody's off and they take a week's holiday, they should be getting whatever they would have got had they been working if that includes some kind of kind of additional payment that they would have got as a result of, in this case, having to sleep in the cab overnight presumably, in the van, then that should be paid.

Is that similar then, Seamus, to the question that came in before we started broadcasting today? When it comes to calculating holidays, should the whole time spent on an overnight sleep-in shift be included in hours worked for holiday pay or just the time they are awake and working? And I suppose that one there is different insofar as the normal pay would vary in that case because people who are sleeping overnight and have to get up to deal with residents and such, like, they would have some part which is a basic allowance and other parts that would have to be at least topped up the national minimum wage for the hours that they're working and, therefore, their pay would vary and therefore, you'd have to look at the previous 12 weeks. Is that the case? Maybe the difference it's not just that they should get the allowance but because the pay goes up and down, the employer's required to do a calculation there.

Seamus:  Yeah, I mean that would be my thoughts exactly in relation to it. I mean, I think that the distinction of the Supreme Court have made, it would seem to me that the sleep-in payment . . . there's a distinction there between the payment that you receive and then if there's additional work involved over and above as you say on top of the national minimum wage and I don't think that it automatically qualifies you to get holidays in relation to, you know, any work that's not conducted or carried out but where you're working above and beyond that I think that the pay records will reflect that and you should be paid accordingly when it comes to your holiday entitlement.


This article is correct at 09/04/2021

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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