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Holiday Pay Amey Letter

18 August 2017

 

 

Kirstie Jones 
Head of HR – Rail 
The Sherard Building, Edmund Halley Road
Oxford Science Park
Oxford
Oxfordshire
OX4 4DQ
 

15 August 2017

Dear Kirstie,

Holiday Pay

At our last company council meeting on 12 April 2017 I made a further request for a negotiated company holiday pay policy that included overtime in holiday pay calculations. I reiterated our preference for a reasonable agreed position to be reached within the collective bargaining structures rather than forcing Amey to resort to costly litigation to defend its position on a case by case basis.

The company side responded that they would seek authority from the Board of Directors to negotiate a specific policy for employees employed by Amey Rail. I am awaiting your response on that matter.

I have obtained a document, circulated to employees by the company, entitled “Holiday Pay Top Up – Frequently Asked Questions”. This includes the following passage:

13. Will my holiday pay top up payment be calculated on overtime payments?

Even though Amey has decided to take the steps outlined above, there remains significant legal uncertainty surrounding the method by which holiday payments should be calculated. This is due to ongoing legal cases in connection with this matter in the courts and employment tribunals. Amey has determined that overtime payments will not been included in the average holiday payment for the 2016-2017 holiday year but we will continue to monitor the legal position and update you accordingly.” [my emphasis in bold]

TSSA’s position is that any uncertainty referred to above no longer exists, following the judgement of the Employment Appeal Tribunal UKEAT/0334/16/JOJ, Dudley Metropolitan Borough Council v. Mr G Willets and Others, handed down on 31 July 2017. Case law has determined that voluntary overtime that is normally worked is within the scope of Article 7 and therefore within the concept of ‘normal remuneration’ for the purposes of calculating Regulation 13 holiday pay within the Working Time Regulations. Our position is that all overtime, whether voluntary, guaranteed or otherwise, should be included in holiday pay calculations and that the judgement referred to above means that a failure to do so would constitute an unlawful deduction from wages, enforceable by the Employment Tribunal. The Dudley case is just another in a series of other cases, such as Bear Scotland v Fulton, Lock v British Gas, Neal v Freightliner, Patterson v Castlereagh Borough Council that all support the inclusion of overtime pay, and other payments intrinsically linked to the performance of tasks under the contract, in the calculation of holiday pay.

I wish to reiterate our position again; that our union would prefer to negotiate a holiday pay policy that satisfies the reasonable expectations of our members, with any associated costs spent on our members’ wages rather than resort to litigation as the necessary means of resolution, with associated costs spent on the company’s legal defence. In the absence of a meaningful commitment to an acceptable negotiated policy, TSSA have no choice but to actively pursue Employment Tribunal claims on behalf of members who have suffered an unlawful deduction from wages because of Amey’s refusal to include overtime in holiday pay calculations.

I look forward to your response.

Yours sincerely,

Matt Barrow

Regional Organiser

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