The Bear Scotland decision could have been worse for employers, says Jessica Corsi
Last week the Employment Appeal Tribunal (EAT) ruled that a specific type of overtime has to be included when calculating statutory holiday pay for workers, as EU law requires workers to receive their normal pay while on holiday. While the ruling, in the joined cases of Bear Scotland Ltd v Fulton UKEATS/0047/13/B, Hertel (UK) Ltd v Woods UKEAT/0160/14/SM and Amec Group Ltd v Laws UKEAT/0161/14/SM, will significantly increase many employers’ wage bills going forward, it could have been a lot worse. It is also not necessarily the end of the story and there are still some unresolved issues.
Non-guaranteed overtime vs voluntary overtime
The EAT’s decision concerned non-guaranteed overtime—overtime which an employee is obliged to work if offered, but which an employer is not obliged to offer. This is different from truly voluntary overtime—where employees can choose whether to work any overtime offered. The extent to which voluntary overtime has to be included may still be up for grabs. Questions also
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