Over recent months, UNISON has led negotiations to secure a framework for NHS staff working under NHS terms and conditions (Agenda for Change) in England to ensure that they receive their correct holiday pay.
The NHS terms and conditions handbook, under section 13 already clearly states that pay should be calculated based on what an individual would have received if they had been at work.
Section 13.9 of the NHS terms and conditions of service, states that:
‘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.’
Until now employers have not consistently included regular overtime in these calculations.
These negotiations were only possible thanks to UNISON members taking legal claims, through a successful organising strategy, which helped to strengthen our position to collectively bargain on behalf of our members.
UNISON made it clear from the outset that employers need to fix historic miscalculations of holiday pay and to prevent these underpayments from reoccurring.
After working through a range of varied and complex fixes to remedy the historic underpayments, trade unions and employers agreed that the fairest approach would be to apply a single percentage to all eligible overtime, including additional time worked by part time staff.
The agreement means that employers will go back 2 full financial years (1 April 2019 to 31 March 2021) and correct historic underpayments for employed staff who meet the eligibility criteria. Payments will be made between April and September 2021.
UNISON members with existing legal claims will be approached by their employer with a settlement offer and should speak to their Thompsons’ legal advisor before proceeding.
This agreement covers England only. An agreement has already been reached in Scotland. Employers in Cymru Wales and Northern Ireland have indicated they will enter discussions with trade unions to resolve this issue in their respective administrations.
The national discussions that have taken place now clarify how NHS employers should interpret section 13.9 of the NHS terms and conditions of service. It is now accepted that employers should include regularly worked overtime and additional standard hours in the calculation of pay when staff are on annual leave.
Corrective payments will be made in respect of the period covering the financial years 2019/2020 and 2020/2021.
The corrective payments will be based on overtime earned in the financial years 2019/2020 and 2020/2021. To be eligible for a corrective payment in either or both financial years a member of staff will need to meet the eligibility criteria set out in the framework agreement.
More details on the eligibility criteria and how the corrective payment is calculated can be found in the supporting FAQ sections below.
NHS employers and trade unions have agreed to work collectively (both nationally and locally) to resolve outstanding legal claims.
The existing legal claims lodged in the Employment Tribunal or the County or High Court, will be resolved through local settlement discussions between the relevant employer and the claimant along with their legal adviser.
NHS Employers is working on guidance for the future application of annual leave pay in respect of regularly worked overtime under the NHS terms and conditions of service (Agenda for Change). Please continue to check this section for further information.