UNISON Health Group UNISON Centre
130 Euston Road London
Ken Wenman, Chief Executive 20 October 2016 South Western Ambulance Service NHS Foundation Trust
Eagle Way Exeter
Ref: NASPF agreement on payment of overtime on annual leave
I am writing to you following the National Ambulance Strategic Partnership Forum meeting in September where we agreed a way forward with the issue of shift overrun overtime to be included in annual leave payments. I would like to thank you and the other ambulance employers for the positive way you have engaged over this piece of work.
I am however aware that a number of legal cases have been lodged on a Trust by Trust
basis in order to ensure our members are paid correctly for their annual leave. Our national agreement only goes part way to satisfy elements of these claims and we are aware that ambulance services are citing this work in their responses to employment tribunals.
We started discussions with a view to relieving the pressure on local partnerships and prevent some litigation so that the issue is dealt with nationally. However, as you will appreciate, where employees consider that they are not being paid correctly for annual leave, in line with the law as it currently stands, they are entitled to have their individual claims considered.
As I stated at our last two NASPF meetings, there are still areas where we are not in
agreement and my action was to bring these to your attention by letter with a view to sharing our position and to seek to widen the agreement in the future in line with good practice and legal developments.
So far, employers have agreed to calculate the proportion of overtime accrued through shift overruns and pay this as a proportion during annual leave. Trade Unions argue that this should include all overtime, not limited to shift overruns. Recent cases state that pay for non-guaranteed overtime, which employees are required to work and which is regularly required for overtime payments to be normal remuneration, should be included in holiday pay. More recent cases have further defined this matter and also include overtime as long as it is regularly worked. We believe that these cases (Lock v British Gas Trading Ltd, BearScotland v Fulton; Patterson v Castlereagh; Mansfield v Leeds Teaching Hospitals; White & Others v Dudley Metropolitan Borough Council) are relevant and allow us to widen the scope of this agreement and include other elements such as all overtime and regular paid supplements (for example, unforeseen change payment, meal break payments etc).
In addition to the case law, we also point to Agenda for Change, Section 13: Annual leave and general public holidays, specifically 13.9
13.9 Pay during annual leave will include regularly paid supplements, including any
recruitment and retention premia, payments for work outside normal hours and high cost area supplements. Pay is calculated on the basis of what the individual would have received had he/she been at work. This would be based on the previous three months at work or any other reference period that may be locally agreed.
We consider this section to widen the agreement to cover all overtime; in addition, it is clear about regularly paid supplements.
At the NASPF, we agreed to review the outcome of any relevant case law and how it applies to our national agreement. In the meantime, it would be helpful for us to agree our next steps to roll out the agreement as it stands. My suggestion is that we, as joint chairs of the NASPF, write to local partnerships to set out what they need to discuss and agree. I can think of the following clarifications that would be useful.
Application - local partnerships can agree to extend the agreement to cover other elements for their local needs
Recording - as discussed at the NASPF there is a need to record shift overruns separately from other overtime
Calculation - either as a multiplier or reference period as per the presentation from South Central Ambulance service
Payment - advice to payroll services about the practical application of the spreadsheet and linking to ESR
I think we should also set out a basic guide to managers, HR professionals and Trade Unions to help them apply the agreement in partnership at a Trust level.
Thank you again for working in partnership with us over this issue. Kind regards
National Officer, UNISON - Trade Union Side Chair NASPF
Cc: NASPF members
Local ambulance branches