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Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

17 Mar 2019, 11:04

The Prison Service Union (POA) have won a successful tribunal case in the courts that states that employees who work additional hours, are entitled to have these hours taken into consideration for extra Annual Leave, and also compensated with back pay at 7.693%.

E.g. 100 hours of Additional hours, overtime at say 11 pounds per hour.

100 x 11.00 = 1.100

7.693% of £1100 = £84.62

It also states that the arrears will only be pensionable if the original additional payment/ overtime was pensionable.

Are the CWU aware of this as many Post Office employees should, as a precedent has been set, due this compensation and extra Annual Leave.

Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

17 Mar 2019, 18:08

redacer - better late than never some might say, but the CWU are making some efforts to progress this on an individual, test case by case basis
which, if it results in some sort of legal ruling, hopefully become a policy that covers everybody (such as the POA have achieved):

https://www.royalmailchat.co.uk/communi ... 15&t=90004

Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

17 Mar 2019, 18:22

I know that other companies do not want this to become known. I for one would like to be one of these test cases as I feel I have a lot to gain. This opens up a can of worms as postmen/woman taken on, on part time contracts, on say 20 hours and have to because of circumstances have to do a lot of additional hours/ overtime therefore have a legitamate claim to be compensated.

Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

17 Mar 2019, 23:15

how do they chose the test case ? Can you volunteer or request to put yourself forward ?

Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

18 Mar 2019, 09:26

hero22 wrote:how do they chose the test case ? Can you volunteer or request to put yourself forward ?

LTB 123.19 Attachment 2 – Holiday Pay Flow Chart Final https://emails.cwu.org/t/d-l-nuudko-ztkjiuyil-h/

According to 3. "Members should be selected..."

HOLIDAY PAY - FLOW CHART
1. In connection with Branches, a Lead Divisional Rep from each Division identifies
members who may have a claim for the “non-payment of holiday pay” whilst on
leave.
2. These members do not need to be grade specific as the claim is about employer v
employee.
3. Members should be selected from each postcode area, i.e. EH, BA, etc with a
functional mix.
4. Claims for holiday pay entitlement only covers the first 20 days of any annual leave.
5. ET Claims need to be submitted no longer than 3 months from their last period of
leave.
6. A grievance needs to be formally registered with Royal Mail Group and the claimant
must then immediately complete step 7 below in order to protect the claim.
7. All claimants must complete and submit the on-line ACAS Early Conciliation
application which requires details of themselves, who the claim is against, i.e. Royal
Mail Group, the basis of the claim, non-payment of holiday pay and in the
section regarding representation they should put “David Wilshire, CWU
Headquarters, 150 The Broadway, Wimbledon, London, SW19 1RX”.
8. Claimants will receive notification from ACAS that their claim has been successfully
lodged.
9. ACAS will contact Royal Mail to enquire if they are interested in early conciliation (we
expect the answer to be negative). If this happens that will be the end of the early
conciliation process and ACAS will notify the member and provide them with an
appropriate certificate.
10. Once the member receives the ACAS certificate which states the process has
concluded, members must then immediately submit a claim to an Employment
Tribunal (usually on-line) using form ET1. Please note our members must include
the ACAS early conciliation certification reference number, which must be included in
the appropriate section of the ET1 application form.
11. The Employment Tribunal Office will send confirmation to the member that their ET1
application has been successfully lodged. Please note in the section of the ET1 form
regarding representation, the member must again complete this by stating “David
Wilshire, CWU Headquarters, 150 The Broadway, Wimbledon, London, SW19 1RX”.
The Employment Tribunal Offices will then contact CWU Headquarters and it will be
our intention to liaise with the Tribunal Service in order to request that all the claims
are grouped as a collective claim against Royal Mail. This will be done in conjunction
with the Union’s Solicitors at Unionline

Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

19 Mar 2019, 10:28

Redacer wrote: because of circumstances have to do a lot of additional hours/ overtime therefore have a legitamate claim to be compensated.


That's not a legitimate claim for compensation.You knew it was a part time job when you took it on. No-one forced you to do overtime. This is going to be their argument.

The POA on the other hand,because of the nature of the business probably have some compulsory overtime written into their contract.

This is the whole argument. The law says (Iirc) that compulsory overtime may require annual leave pay to be an average but not voluntary overtime.

Don't hold out any hope of back pay on this because it won't happen. How far do you go back? I would be due double my pay for the seven years I was on an 18 hour contract. It would bankrupt the company.
Let's not forget also that if you're currently buying up your leave that this amount will probably rise also. If your a/l pay goes up because of overtime worked then the company will want the extra weeks you buy up paid for.

The best we could hope for would be a fresh start where hours worked would be taken into account for annual leave pay.

Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

19 Mar 2019, 15:51

97gaz wrote:
Redacer wrote: because of circumstances have to do a lot of additional hours/ overtime therefore have a legitamate claim to be compensated.


That's not a legitimate claim for compensation.You knew it was a part time job when you took it on. No-one forced you to do overtime. This is going to be their argument.

The POA on the other hand,because of the nature of the business probably have some compulsory overtime written into their contract.

This is the whole argument. The law says (Iirc) that compulsory overtime may require annual leave pay to be an average but not voluntary overtime.

Don't hold out any hope of back pay on this because it won't happen. How far do you go back? I would be due double my pay for the seven years I was on an 18 hour contract. It would bankrupt the company.
Let's not forget also that if you're currently buying up your leave that this amount will probably rise also. If your a/l pay goes up because of overtime worked then the company will want the extra weeks you buy up paid for.

The best we could hope for would be a fresh start where hours worked would be taken into account for annual leave pay.


The initial paragraph indicates overtime pay that is regularly earned, whether the overtime is compulsory or voluntary.

LTB 123/19 Royal Mail Group Holiday Pay
No. 123/19
22nd February 2019

Dear Colleague,

Royal Mail Group Holiday Pay

Branches will be aware that the Union has been attempting to conclude a collective National Agreement with Royal Mail Group in relation to the long-standing but extremely complex issue of holiday pay (average pay on leave).

We believe that the law requires holiday pay to be calculated on the basis of the relevant employee’s normal pay (including overtime pay that is regularly earned, whether the overtime is compulsory, voluntary or something in between). We are also extremely clear that a National Agreement will prove the easiest way to bring this matter to a successful conclusion.

Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

19 Mar 2019, 17:07

97gaz wrote:
That's not a legitimate claim for compensation.You knew it was a part time job when you took it on. No-one forced you to do overtime. This is going to be their argument.


The business model - staffed to a model week with the need for "flexing up" - actually requires overtime.
If nobody did overtime the business model would fail.

Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

19 Mar 2019, 19:47

97gaz wrote:
Redacer wrote: because of circumstances have to do a lot of additional hours/ overtime therefore have a legitamate claim to be compensated.


That's not a legitimate claim for compensation.You knew it was a part time job when you took it on. No-one forced you to do overtime. This is going to be their argument.

The POA on the other hand,because of the nature of the business probably have some compulsory overtime written into their contract.

This is the whole argument. The law says (Iirc) that compulsory overtime may require annual leave pay to be an average but not voluntary overtime.

Don't hold out any hope of back pay on this because it won't happen. How far do you go back? I would be due double my pay for the seven years I was on an 18 hour contract. It would bankrupt the company.
Let's not forget also that if you're currently buying up your leave that this amount will probably rise also. If your a/l pay goes up because of overtime worked then the company will want the extra weeks you buy up paid for.

The best we could hope for would be a fresh start where hours worked would be taken into account for annual leave pay.


Surely there’s an argument that any overtime done in Royal Mail is compulsory. The only reason Royal Mail require people to do overtime is to fulfil the USO obligation, otherwise they would roll the work over to the next day. Therefore it doesn’t matter who done it, it was compulsory to fulfil the USO.

Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

19 Mar 2019, 21:17

How can it be compulsory? There is no Rita to show that it's may turn , there's no list ,as far as I know that exists to show when I've done overtime,it's always voluntary ,otherwise there would be no need for managers to be out on delivery. Plus if people are forced to do it , it could affect things like child maintenance payments ,tax credits etc.

Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

20 Mar 2019, 08:45

rubberbond wrote:How can it be compulsory? There is no Rita to show that it's may turn , there's no list ,as far as I know that exists to show when I've done overtime,it's always voluntary ,otherwise there would be no need for managers to be out on delivery. Plus if people are forced to do it , it could affect things like child maintenance payments ,tax credits etc.


It does not really matter if overtime is compulsory or not because "voluntary" overtime is encompassed as previously posted.

The initial paragraph indicates overtime pay that is regularly earned, whether the overtime is compulsory or voluntary, or something in between.

Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

21 Mar 2019, 08:52

rogersh wrote:
The initial paragraph indicates overtime pay that is regularly earned, whether the overtime is compulsory or voluntary, or something in between.


Just a quick google from a couple of sites shows this may not be the case. I've highlighted the relevant terms.

"Whilst not contractually agreed, this overtime would include any case in which the employee is obliged to work if it is offered or required by the employer"

"The Employment Appeal Tribunal (EAT) held that regular overtime that is not guaranteed, but that employees are required to work when it is offered, must also be included"

This from Acas; On 4 November, the Employment Appeal Tribunal (EAT) ruled that holiday pay should reflect non-guaranteed overtime. Non-guaranteed overtime is where there is no obligation by the employer to offer overtime but if they do then the worker is obliged by their contract to work that overtime.

As overtime at Royal Mail is fully voluntary and with absolutely no way for RM to force you to work it if you don't want to, I think we won't come under this new directive. I do think the union will get a deal where the relevant four weeks of your holiday pay will take overtime into account but I doubt very much there will be any back pay.

Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

21 Mar 2019, 15:38

97gaz wrote:
rogersh wrote:
The initial paragraph indicates overtime pay that is regularly earned, whether the overtime is compulsory or voluntary, or something in between.


Just a quick google from a couple of sites shows this may not be the case. I've highlighted the relevant terms.

"Whilst not contractually agreed, this overtime would include any case in which the employee is obliged to work if it is offered or required by the employer"

"The Employment Appeal Tribunal (EAT) held that regular overtime that is not guaranteed, but that employees are required to work when it is offered, must also be included"

This from Acas; On 4 November, the Employment Appeal Tribunal (EAT) ruled that holiday pay should reflect non-guaranteed overtime. Non-guaranteed overtime is where there is no obligation by the employer to offer overtime but if they do then the worker is obliged by their contract to work that overtime.

As overtime at Royal Mail is fully voluntary and with absolutely no way for RM to force you to work it if you don't want to, I think we won't come under this new directive. I do think the union will get a deal where the relevant four weeks of your holiday pay will take overtime into account but I doubt very much there will be any back pay.


I have done a quick google also;

Voluntary overtime should be included in holiday pay under Agenda for Change
Published 10 July 2018

The Employment Appeal Tribunal (EAT) has decided that clause 13.9 of Agenda for Change (AfC), which deals with pay during annual leave, gives a contractual right for voluntary overtime to be included in holiday pay. This is regardless of whether such payments are regular enough to amount to "normal" pay.

This EAT decision follows the EAT decision in Dudley Metropolitan Council v Willetts which looked at the obligation to pay voluntary overtime under the Working Time Regulations (WTR) (see our previous alert here). In Dudley, the EAT ruled that voluntary overtime should be included in the first four weeks holiday pay where such payments are "regular enough" to amount to "normal" pay. This recent decision gives a contractual right to employees under AfC, not just a statutory one under the WTR.
Which elements of ‘pay’ should be included in any holiday pay calculation has been at the core of a number of cases since the introduction of the right to paid holiday in 1998. The premise is simple: a worker who takes annual leave should be paid the same amount for that leave as they would have received had they been at work. The practicalities of this calculation have proved more controversial.

Does voluntary overtime count towards holiday pay?
27 Jul 2018 By Nick Hurley
EDIT;
Normal remuneration
In Dudley the EAT found that the overarching principle is that normal remuneration must be maintained in respect of annual leave to ensure that by taking leave, a worker does not suffer a financial disadvantage which may deter them from exercising that right. Payments in respect of overtime (whether that is compulsory, non-guaranteed, or voluntary) constitute remuneration. For a payment to count as ‘normal’ it must have been paid over a sufficient period of time – this will be a question of fact and degree. The indication given, while not precise, was that voluntary overtime worked one in every four or five weeks would be sufficiently regular to count as ‘normal’ and should be included.

The Trust tried to argue that Dudley was wrongly decided and in any event could be distinguished on the facts. The EAT in Flowers however, found that the decision in Dudley was right and should be applied in this case – voluntary overtime should be included if it falls into the category of being paid over a sufficient period.

While this confirms the earlier EAT decision of Dudley, it does not neatly answer all the issues for practitioners, but what is clear is that:

Guaranteed overtime should always be included in holiday pay calculations;
Non-guaranteed overtime, which is compulsory when offered, should also always be included;
Purely voluntary overtime, where there is no obligation to offer it and no obligation to do it if offered, should be included if it is sufficiently regular or recurring so as to qualify as ‘normal’.

A LTB update on this topic has been posted on this forum.

Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

21 Mar 2019, 17:38

I stand corrected. Let's see how RM interpret the phrase regular overtime.

Annual Leave & Addional Hours Payments, Berryman v Secretary of State for Justice

21 Mar 2019, 18:37

The only way to work out regular overtime is to average out the overtime worked over a set period, which to be accurate should be 52 weeks. But as this would be a lot of record keeping of hours, a 12 week period leading up to the holiday would be sufficient. I do believe when it comes in, royal mail will offer an incentive of some sort for full timers and it will be paid pro rota to part timers. Which will be unfair as it is the part timers who have to work the most hours overtime to make their money up

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