It is well established that workers are entitled to their
"normal remuneration" during the four weeks of annual
leave granted under the Working Time Directive. However, what
constitutes "normal remuneration" continues to be a
contested area despite the recent developments in case law on the
The EAT has already addressed the issue of contractual
commission payments and non-guaranteed overtime payments, holding
that these payments should be included where they are intrinsically
linked to the performance of the tasks carried out under the
contract of employment.
However, in the most recent claim, an employment tribunal was
asked to consider whether the calculations of holiday pay for the
56 claimants employed by Dudley Council should include voluntary
overtime, voluntary standby allowances and voluntary call-out
payments. It was held that, although the rotas in question are
voluntary, once an employee has signed up to the relevant rota,
they are required to attend the workplace (or be available, if on
standby). Therefore the payments are inherently connected to the
work required to be done under the contracts. Furthermore,
according to the Tribunal, as a number of the voluntary payments
have previously been made with sufficient consistency and
regularity, they could be properly identified as forming part of
"normal remuneration" and should be included when
calculating the workers' statutory holiday pay.
Whilst this most recent tribunal decision is non-binding, and
each case will turn on its own facts, it demonstrates the direction
that the case law in this area is taking. It applies the
calculation of statutory holiday pay in line with the EAT's
previous decisions; that these calculations should include the
payments a worker normally receives under their contract of
employment, having particular regard to the frequency and
regularity with which the payment is made.
Employers might consider whether to wait for an appellate
decision on this point or take action now. In any event, it would
be advisable for employers to review the payments that they make to
staff and assess their frequency and connection to the work being
performed in order to identify any potential risks going
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The seminar will take place on 31 March 2017. It aims to provide German companies with an overview of the latest developments in relation to insurance coverage, banking transactions and legal aspects of doing business with Iran.
The employment landscape is one that is constantly shifting. Employers who fail to keep up with the changes do so at their peril.
We are pleased to invite you to this seminar, designed to help in-house counsel and HR practitioners get to grips with key recent and forthcoming developments in employment, pensions and immigration law and practice and what they mean for your workforce.
In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
Case law concerning the Agency Worker Regulations remains limited. We recently advised a recruitment business involved in a dispute with a "temp" and a hirer regarding who was liable for an alleged breach of AWR Regulation 5.
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