Louise McAloon, Partner, by reference to a recent lead case, outlines how Employers not paying ‘normal remuneration’ in relation to Regulation 13 statutory annual leave are liable to multiple unlawful deduction from wages claims and urges legal advice be sought in this regard
In a lead case involving 5 of 56 claims against Dudley Metropolitan Borough Council; an Employment Tribunal in Birmingham has held that voluntary overtime, taxable elements of travel allowance and other payments associated with rotas worked voluntarily including out of hours standby payments and call out allowances constitute “normal remuneration” and should have been included in the calculation of the 4 weeks statutory holiday pay under Regulation 13 of the Working Time Regulations 1998. Whilst the work was entirely voluntary, the Tribunal notes that once the person had volunteered for a rota, they were committed to it. The Employment Tribunal endorsed other comments made in Bear Scotland that, in the absence of agreement to the contrary, the 4 weeks leave under Regulation 13 of the Working Time Regulations should be deemed to have been taken before the 1.6 weeks additional leave under Regulation 13A. Although it is non-binding as a tribunal decision, it confirms the direction of travel in relation to this case of holiday pay case law and provides a useful illustration of what constitutes "normal remuneration" for the purposes of the 4 weeks Regulation 13 holiday pay. As the decision dealt with liability only, further decision is expected in relation to quantum and in particular in relation to how a series of deductions works.
Employers who are not paying ‘normal remuneration’ in relation to Regulation 13 statutory annual leave are liable to multiple unlawful deduction from wages claims and should seek immediate advice to avoid significant awards including potential back pay.
Louise McAloon is a Partner specialising in employment law in Worthingtons Solicitors, Belfast. For advise please telephone 028 9043 4015