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P Smith v Barrels Care UK Ltd

If you regularly work overtime, it should count towards your holiday pay.

The ruling

“Won £1,024.66 holiday pay for unpaid overtime; lost wages, constructive dismissal and whistleblowing claims.”

What matters is whether your overtime is regular, not whether it's guaranteed. If it is, it should be included when your holiday pay is worked out, and you can usually claim a shortfall going back up to two years.

  • Check whether your holiday pay reflects your average earnings, including regular overtime, rather than just your basic contracted hours.
  • Keep hold of your payslips and P60s. They're the easiest way to show a pattern of regular extra hours if you need to make a claim later.
  • Get advice before resigning over unfair treatment or raising something as a whistleblowing concern. Both have a higher legal bar than most people expect.
Read the full case

The situation

The claimant worked as a care assistant in a dementia care home for five years. Her contract set out 36 hours a week, but she regularly worked far more through voluntary overtime, at times averaging close to 50 hours a week. When her employment ended, her employer calculated her final holiday pay using only her basic 36-hour rate. She had raised other complaints along the way too. Her employer refused her paid leave after a road accident abroad, then handed her a list of conduct allegations days after she brought a tribunal claim. She resigned, saying she had been constructively dismissed.

What the tribunal found

The tribunal found the holiday pay claim well-founded. Her overtime was regular and settled, so it should have counted towards her holiday pay for the 4 weeks' leave protected under the Working Time Regulations 1998, not just her basic hours. It awarded her £1,024.66 gross, though the payment was limited to her final two years of employment under the statutory two-year backstop on wage claims.

Her other claims failed. The tribunal found no implied right to a fixed higher number of hours a week, so changes to her shifts were not a breach of contract. Constructive dismissal failed too. The tribunal accepted the holiday pay error was unreasonable, but said it fell well short of the serious breach of trust and confidence the law requires. It also accepted the employer had genuine grounds to raise its conduct concerns with her. Her whistleblowing claim also failed. Her grievance email voiced a personal complaint about her own treatment, not new facts, so it did not meet the legal test for a protected disclosure.

What matters is whether your overtime is regular, not whether it's guaranteed. If it is, it should count when your holiday pay is worked out. Employers often calculate holiday pay using only your basic contracted hours, but the law requires your average earnings, including overtime that has become a regular part of your working pattern, to be reflected in at least 4 weeks of your leave each year. If that has not happened, you may be owed money, though claims for unpaid wages are usually limited to the two years before you claim.

This case is also a reminder that something can be unreasonable without being against the law. Being underpaid, having your shifts changed, or being asked to answer for your conduct can all feel unfair, even unreasonable. None of that, on its own, clears the much higher bar the law sets before you can resign and claim constructive dismissal. And if you want to raise something as a whistleblowing concern, saying a decision felt unfair is not enough on its own. You generally need to set out what actually happened, in enough detail that it could be checked.

You should not have to work any of this out alone, whether your holiday pay looks wrong or you are weighing up whether to resign over how you have been treated. Getting advice early means you understand where you stand and what evidence to gather before you act. For more on the legal test for constructive dismissal, see our case study on the four-step test tribunals apply.

Full citation

P Smith v Barrels Care UK Ltd, 3305371/2024, Employment Tribunal, 22 June 2026

Last reviewed 31 July 2026