A legal ruling last week means trusts could have to take account of regular voluntary overtime in calculating holiday pay, unless an appeal to the Supreme Court is successful. The ruling by the Court of Appeal could particularly affect organisations where staff do extra shifts because of vacancies.
NHS Providers’ director of policy and strategy Miriam Deakin said: “The current pressure on staffing levels and rota gaps within the NHS can lead to more staff volunteering to work additional hours.
“This is not ideal or sustainable in the long term but is one solution for trusts seeking to cover rota gaps and keep services running, given that trusts are actively discouraged from more expensive alternatives such as using agency staff. However, sufficient national funding needs to be available for trusts to cover any additional costs associated with their staff working additional hours.
“The national bodies must also work with regional and local colleagues to improve workforce planning, recruitment and retention across the service and ensure trusts have access to the skilled staff they need.”
Last week’s case – the East of England Ambulance Service Trust v Flowers – saw three judges rule that the working of Agenda for Change meant voluntary overtime should be included in holiday pay calculation. It is the latest of a number of cases which have looked at voluntary overtime or cases where staff are unable to finish on time because of clinical commitments such as an ongoing emergency call.
At least one ambulance trust is preparing to pay all operational staff hundreds of pounds for these “overruns” after an earlier ruling. South East Coast Ambulance Service Foundation Trust is negotiating with unions on how the back pay for shift overruns should be calculated.
An agreement in March 2017, between unions and the Association of Ambulance Chief Executives said holiday pay for the first 20 days of each year’s leave should reflect these overruns by the end of the first quarter of 2017-18. This was based on a case – Bear Scotland v Fulton – which established that the European working time directive meant this sort of overtime should count towards holiday pay.
But although all ambulance trusts had committed to doing this, some have not yet started to pay.
The South East Coast Ambulance Service FT, which has seen multiple changes in its senior management over the last few years, is one of them. It has over 2,000 whole-time equivalent staff working on emergency ambulances, and 400 in emergency control centres. All emergency ambulance staff and some control room staff are expected to get the payment in their August pay packet.
The basis for calculating individual payments is still being discussed between unions and management – but as payments are expected to be backdated to November 2014, any mechanism which involves looking at each staff member’s timesheets is likely to be laborious. The trust declined to comment.
Both West Midlands Ambulance Service FT and East Midlands Ambulance Service Trust have changed how they calculate holiday pay to reflect the Bear Scotland case. North West Ambulance Service Trust also changed, and said the extra payments now made amounted to £12,000 per month. Other ambulance trusts were unwilling to say what they were doing, in one case saying it was “commercially sensitive”.