Mr Jonathan Goodhand & others v The Felixstowe Dock and Railway Company — 2023

The tribunal held that voluntary overtime can, in principle, form part of normal remuneration for Regulation 13 Working Time Regulations holiday pay. It rejected the claimants' primary argument that the existence of a broadly predictable overtime system was enough for all employees, and instead assessed each test claimant's actual pattern of overtime. Applying a 52-week reference period, it found overtime sufficiently regular and settled for Bowers, Cable, Double, Fenn, Fidgett and Humphreys, but not for Da Costa, Craig, Dagnall, Frost, Loftus, Rhodda and Symes.

The tribunal held that voluntary overtime did not fall to be included under the domestic week’s pay provisions for either Regulation 13 or Regulation 13A leave, but that EU law principles applied to Regulation 13 leave. It concluded that the relevant question was whether the payments formed part of normal remuneration over a sufficient period of time, assessed by fact and degree, and that the appropriate reference period in these proceedings was 52 weeks.

For Higher Grade Pay, the tribunal rejected the claimants' domestic law argument under section 221(3) ERA, finding HGP was not pay varying with the amount of work done. It nevertheless held under EU law that HGP was intrinsically linked to the employment contract once a licence was granted and the employee was required to perform higher grade duties when asked. HGP was therefore to be included in Regulation 13 holiday pay for Craig, Frost, Da Costa, Dagnall and Rhodda, with quantification left for another hearing.