Voluntary overtime may need to be included in holiday pay calculations

Holiday pay and how it should be calculated remains one of the most hotly debated questions in the world of employment law.  The Northern Ireland Court of Appeal has recently added to this debate by suggesting that it may be necessary to include an amount to cover overtime pay that the employee would miss by being on holiday, even where there is no obligation to work any overtime and they do so on a completely voluntary basis. 

As we reported in January, the Employment Appeal Tribunal has previously ruled in Bear Scotland v Fulton that non-voluntary overtime should be included in many cases, but there has been a lack of clarity on when this obligation arises.  In the Bear Scotland case, the employees in question were obliged to work overtime and did so pretty much every week.  So it appears sensible that they should receive holiday pay equivalent to the pay they would normally receive (including overtime).

What it all boils down to is that staff should receive their normal week's pay for a week's holiday.  If they have contracted hours and stick to those every week, then their normal pay is clear.  If they work overtime pretty much every week, then it is likely that will need to be taken into account when working out holiday pay (by taking an average of their pay over the 12 weeks preceding the period of holiday).

Where overtime is worked on a much more sporadic basis, then it may be possible to argue that holiday pay should just be the basic pay with no adjustment for overtime. It could be argued that they often work just their basic hours and receive their basic pay for those weeks, so they are not losing out by being paid the same amount for a week's holiday.

It seems unlikely that we will ever receive an exact answer to this question from the courts; they will always decide on these sorts of matters based on the specific facts of the cases brought before them.  As an employer, therefore, you need to consider whereabouts on the spectrum of overtime plus basic hours your staff fall and decide on the best approach accordingly.  Please get in contact with us if you would like any further advice on this matter. 

The importance of Social Media Policies

The recent Employment Appeal Tribunal (EAT) case of British Waterways Board v Smith demonstrates how important it is for employers to have a comprehensive social media policy.  

Some employees are unaware that comments they post on social media sites can be seen widely, or sometimes they may be aware and simply don't care.  Most of the time that will not matter, but when they make comments relating to the workplace, colleagues or customers, then this can become a serious disciplinary issue.

In this case, Mr Smith had posted comments on Facebook about his supervisors and managers which were extremely offensive.  In addition, he had stated on Facebook that he had been drinking alcohol at a time when he was on call - the employer's rule was that employees were not allowed to drink any alcohol when on call.  Whilst he claimed that he was unaware that his Facebook settings meant that his posts were public, and that the comments about drinking were untrue and mere banter, the EAT found that his subsequent dismissal for gross misconduct was fair.

The employer had investigated the matter thoroughly and concluded that Mr Smith's actions were very damaging, as any member of the public could see that he was bragging about drinking whilst on duty, which could result in a loss of trust in the organisation and damage to its reputation.  The employer also concluded that it had lost trust and confidence in the employee because of what he had posted.  The comments he had made about the senior staff would make it very difficult for them to have a reasonable working relationship.

If you don't already have a social media policy, or if you think yours may need updating, please contact us for assistance