Patterson v Castlereagh Borough Council  NICA 47
The question of whether voluntary overtime (where there is no obligation on either side) should be included in holiday pay was not dealt with definitively in the recent holiday pay cases. However, this is a question that recently came before the Northern Ireland Court of Appeal in the case of Patterson v Castlereagh Borough Council.
The Claimant was employed by Castlereagh Borough Council (‘the Council’). He regularly worked overtime on a voluntary (non-compulsory) basis for which he was paid at the rate of time and a half. The Claimant’s holiday pay was calculated by reference to his basic hours only, without taking into account his voluntary overtime. He brought proceedings in the Northern Ireland industrial tribunal, claiming that he had suffered unlawful deduction from wages, and that the Council was in breach of the Northern Ireland Working Time Regulations 1998.
The industrial tribunal rejected the Claimant’s claim. It took the view that Article 7 of the Working Time Directive did not require voluntary overtime to be included in the calculation of statutory holiday pay.
The Claimant appealed to the Northern Ireland Court of Appeal.
The Northern Ireland Court of Appeal upheld the appeal. It held that the tribunal had erred in finding that voluntary overtime could not be included in statutory holiday pay. It remitted the case to the tribunal to consider further evidence of the overtime actually worked by the Claimant.
The Court of Appeal was satisfied that, in principle, there is no reason why voluntary overtime should not be included in paid statutory leave. It will be a question of fact for each tribunal to determine whether or not voluntary overtime is normally carried out by a worker and whether it is a sufficiently permanent feature of the remuneration to trigger its inclusion in the calculation of statutory holiday pay.
Patterson is the first appellate decision to directly address whether voluntary overtime should be included in statutory holiday pay. It was previously considered by the Employment Tribunal in Neal v Freightliner Ltd ET/1315342/2012, but Neal settled and so did not progress further. The question was also not determined by the Employment Appeal Tribunal in Bear Scotland.
Decisions of the Northern Ireland Court of Appeal are not binding in England and Wales, but are of persuasive authority. In any event, Patterson should be treated with caution. The Northern Ireland Court of Appeal has suggested that care should be taken in applying the Patterson decision, as there was a lack of argument in the court about the inclusion of voluntary overtime in statutory holiday pay. Rather, the Court of Appeal held that the tribunal was wrong to conclude that voluntary overtime could not be included in statutory holiday pay as a matter of principle. It did not analyse the circumstances in which voluntary overtime could or should be taken into account.
Acas has published a guide explaining the rights to time off for antenatal and adoption appointments. It has also published a brief guide on surrogacy, which sets out the rights available to surrogate mothers and intended parents.
The Children and Families Act 2014 changed the law, introducing the right for fathers, partners and civil partners to take time off to attend antenatal appointments from October 2014, and the right to time off to attend adoption appointments from 5 April 2015. These rights are also available to the intended parents in a surrogacy arrangement.