If you regularly work overtime, it should count towards your holiday pay.
“Won £1,024.66 holiday payThe pay you receive for the paid annual leave you're entitled to under UK law, worth at least 5.6 weeks a year for most workers. It's usually calculated from your normal pay, though the exact method d... for unpaid overtime; lost wages, constructive dismissalWhen your employer's behaviour is so serious that you feel you have no choice but to resign, the law may treat that resignation as a dismissal. The most common basis is a fundamental breach of the imp... and whistleblowingMaking a disclosure about wrongdoing in your workplace, such as a health and safety risk, a criminal act, or a miscarriage of justice. If the disclosure qualifies as protected, the law gives you signi... 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.
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 contractWhen one party to an employment contract fails to comply with one of its terms without a lawful reason. Your employer breaching a significant term of your contract can entitle you to resign and claim .... 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 grievanceA formal complaint raised by an employee against their employer, triggering a legal obligation to investigate and respond. email voiced a personal complaint about her own treatment, not new facts, so it did not meet the legal test for a protected disclosureThe legal term for a qualifying whistleblowing report. For a disclosure to be protected it must relate to specific categories of wrongdoing, you must reasonably believe it is true, and in most cases i....
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.
P Smith v Barrels Care UK Ltd, 3305371/2024, Employment Tribunal, 22 June 2026