Entitlement to holiday pay including overtime pay?

By Jeffrey L. R. Kenens, TeekensKarstens advocaten notarissen

In this case the plaintiff claimed to be entitled to holiday pay including overtime hours, arguing on the basis of the European Working Hours Directive (Directive 2003/88/EC) and the case law of the European Court of Justice based on it (ECJ). The ECJ has rendered three judgments that are important for the assessment of the case – namely the judgments of 16 March 2006 in Robinson-Steele, of 15 September 2011 in Williams v British Airways and of 13 December 2018 in Hein v Albert Holzkamm.

According to the Robinson-Steele judgment, wages must continue to be paid during annual leave within the meaning of the Working Time Directive. In other words, the employee must receive his normal pay for this rest period.

The Williams v British Airways judgment addresses how to determine what the employee’s normal pay is if it consists of various components. Accordingly, any inconvenient aspect which is linked intrinsically to the performance of the tasks which the worker is required to carry out under his contract of employment and in respect of which a monetary amount is provided which is included in the calculation of the worker’s total remuneration, must necessarily be taken into account for the purposes of the amount to which the worker is entitled during his annual leave.

Finally, in Hein v Albert Holzkamm, the ECJ pointed out that remuneration for overtime worked is not, in principle, by reason of its exceptional and unforeseeable nature, part of the ordinary remuneration to which a worker is entitled during the paid annual leave. However, if the obligations arising from the employment contract require the worker to work overtime regularly, and if remuneration for overtime forms a significant part of the total remuneration received for his employment, the overtime remuneration must be included in the ordinary remuneration to which the worker is entitled during the paid annual leave.

The question in this case was whether the plaintiff was obliged under the employment contract to work overtime that was foreseeable and customary, and therefore did the remuneration for that overtime form an important part of the total remuneration. Because the employment contract did not oblige the plaintiff to work overtime, the criteria for payment of holiday pay including overtime hours were not met. The Dutch court added that if the plaintiff was prepared to work overtime at the request of his employer, that does not mean that he was obliged to do so.

Published: Employment Law Newsletter, No.11, Autumn 2021 l Photo: andrii_lutsyk - stock.adobe.com