As you may have heard The Employment Appeal Tribunal has, this morning November 3rd 2014, handed down judgment in Bear Scotland v Fulton (and conjoined cases).

Key points:-

  1. workers are entitled to be paid a sum of money to reflect normal non-guaranteed overtime as part of their annual leave payments
  2. that applies only to the basic 4 weeks’ leave granted under the Working Time Directive, not the additional 1.6 weeks under regulation 13A of the Working Time Regulations. In other words it only applies to 20 days per year not 28.
  3. claims for arrears of holiday pay will be out of time if there has been a break of more than three months between successive underpayments (subject to the reasonable practicability test) this effectively limits the back pay that can be potentially be claimed and is a benefit to employers as potentially employees could have claimed up to 6 years back pay.
  4. travel time payments, which exceed expenses incurred and so amount to additional taxable remuneration, should also be reflected when calculating holiday pay. It is not clear but I would suggest this will apply to any call out allowances paid to your employees

The Employment Appeal Tribunal refused to grant a reference to the Court of Justice of the European Union, but gave permission to appeal to the Court of Appeal (stating that ground 3 was the most significant point for the Court of Appeal to consider). Hopefully this will not go wrong.

For help in this area and advice going forward please contact me at or phone on 0203 640 7748

Michael Newman