Bear Scotland Limited v Fulton, and similar: EAT 4 Nov 2014

The EAT held that Article 7 of the Working Time Directive is to be interpreted such that payments for overtime which the employees in two appeals before it were required to work, though which their employer was not obliged to offer as a minimum, is part of normal remuneration and to be included as such in the calculation of pay for holiday leave taken under regulation 13 of the Working Time Regulations 1998.
Those Regulations could be interpreted so as to conform to that interpretation.
An appeal by Bear Scotland was thus rejected, as were (on these issues) appeals by Hertel and Amec.
A further appeal by Hertel and Amec against the ET’s findings that the Claimants could claim the consequent arrears of pay as being unlawful deductions from their pay under the ERA 1996 (on the basis that on each occasion holidays were not paid in accordance with the true interpretation of Article 7 and the WTR the deduction was one of a series of deductions) was allowed insofar as in any case a period of more than three months elapsed between such deductions. Their appeal against a conclusion that contractual payments for PILON should include payment for 44 hours per week (including 6 hours overtime) also succeeded, upon a construction of the relevant contractual provisions.
A cross-appeal by the Claimants in Hertel and Amec succeeded against the ET’s decision that taxable remuneration for time spent travelling to work did not fall within ‘normal remuneration’ for the purpose of calculating holiday pay.

Langstaff P J
UKEATS/0047/13/BI, UKEAT/0160/14/SM, UKEAT/0161/14/SM, [2014] UKEAT 0047 – 13 – 0411, [2015] ICR 221, [2015] 1 CMLR 40, [2015] IRLR 15
Judiciary, Bailii
Working Time Regulations 1998, Working Time Directive (2003/88/EC) 7, Employment Rights Act 1996
England and Wales
CitedWilliams And Others v British Airways Plc ECJ 15-Sep-2011
ECJ Working conditions – Directive 2003/88/EC – Organisation of working time – Right to annual leave – Airline pilots
ECJ Article 7 of Directive 2003/88/EC and clause 3 . .
CitedBritish Airways Plc v Williams and Others SC 17-Oct-2012
The claimants, airline pilots, and the company disputed the application of the 1998 Regulations to their employment. They sought pay for their annual leave made up of three elements: a proportionate part of the fixed annual sum paid for their . .

Cited by:
CitedBritish Gas Trading Ltd v Lock and Another (Working Time Regulations : Holiday Pay) EAT 22-Feb-2016
Mr Lock was at the material time employed by British Gas as a salesman. His remuneration package included a basic salary plus commission which was based on the . .

Lists of cited by and citing cases may be incomplete.

Employment, European

Leading Case

Updated: 09 November 2021; Ref: scu.538258