NHS - Overtime Payments included in Annual Leave Pay
22 January 2019

We have received the independent scrutineer’s report following the ballot of GMB Paramedic members that closed 17th January 2019.

Whilst a significant majority of those taking part in the ballot voted yes for strike action and action short of strike, unfortunately the total number of members taking part in the ballot was less than the 50% threshold requirement.

It is a legal requirement that 50% of those eligible to vote actually do so for us to be able to call on members to take action following a ballot. It is also a legal requirement that 40% vote yes when those balloted work in ‘important public services’.

As you will see from the independent scrutineer’s report to follow only 36.6% of those eligible to take part actually voted.

We can confirm that GMB will not be calling upon members to take part in industrial action following this ballot.

We know this is a disappointing result but we can only assume it reflects the feelings of the membership.

We are aware that some members are claiming that they never received a vote, however, the ballot was sent out in the same manner to the same people as the last one.

That ballot received a response of well over the required 50% this one fell short of that figure.

NHS - Overtime Payments included in Annual Leave Pay

The recent Employment Appeal Tribunal case of Flowers v East of England Ambulance Trust considered the inclusion of voluntary overtime payments in the calculation of holiday pay - this was an argument pursued on two distinct basis.
Firstly, that voluntary overtime should be included in the calculations to ensure compliance with the Working Time Directive. The EAT held that ‘non-guaranteed overtime or shift overruns and voluntary overtime payments made should be regarded as part of normal remuneration for the purposes of calculating holiday pay, provided the shifts were worked regularly’. That reasoning follows a line of cases culminating in Dudley MBC-v_ Willets heard last year.

Arguably more significant was the second argument, namely, that clause 13.9 in the Agenda for Change Terms and Conditions of Service Handbook requires its inclusion; so that a failure to pay on that basis amounts to a breach of the contractual entitlement and gives rise to an unlawful deduction from wages.

Since the Dudley case, NHS and Ambulance Trusts applying Agenda for Change should already have been paying voluntary overtime as a part of annual leave pay calculations. The new case of Flowers is even more relevant to our members as it deems the right to be contractual, so a claim for back pay over a 6-year period could be pursued.

We have written to the trust to highlight this issue and would ask members who regularly work overtime and think they may have a claim to complete the attached.

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GMB North West & Irish Region


GMB North West & Irish Region