Holiday pay question

[Castiel]

No, the law allows for this when converting to hours for part timers, or in this case an irregular worker (part time working that includes different length days is referred to as irregular working.)

http://www.direct.gov.uk/en/Employment/Employees/Timeoffandholidays/DG_10034642





But you're wrong.

He is contracted on weekly regular hours, not weekly irregular hours so that doesn't apply. The hours/days method is standard practice for regular weekly paid workers. His contract or t&c's will almost certainly state this., if it doesn't he may have a case but I doubt it.

 

[Deleted member 66701]

He is contracted on weekly regular hours, not daily irregular hours so that doesn't apply.

Yes it does.

But I can't prove it with resorting to an employment tribunal so there is no point in further discussion - time for bed

 

[Castiel]

Yes it does.

But I can't prove it with resorting to an employment tribunal so there is no point in further discussion - time for bed

You're wrong as a tribunal would ascertain. He is not a casual worker, neither does he work irregular hours on a weekly basis. He works 20 hours a week, every week.

What you are referring to would be applicable if he worked 20 hours one week, but 18 the next and 21 after that and so on, or he was contracted on a daily basis, or casually with no contracted minimum.

 

[Dolph]

You wrong as a tribunal would ascertain. He is not a casual worker, neither does he work irregular hours on a weekly basis. He works 20 hours a week, every week.

Indeed, the relevant section of the law is:

If you are a part-time worker, you are still entitled to 5.6 weeks' holiday – 5.6 of your normal working week. For example, if you work two days a week you would be entitled to 11.2 days' annual leave a year:

2 days x 5.6 weeks = 11.2 days

You should be treated no less favourably if you are a part-time worker than an equivalent full-timer. This means that if your employer gives extra days off to full-timers they may have to give extra time off to part-time workers as well.

From the link provided above.

Someone who is contracted to work 5 hours on a monday, and 10 hours on a saturday, every week, is not an irregular worker, they are a part time worker.

You can still work it out as time if you want, but there is still an onus on the employer to ensure that the employee has their allocated time off, which is a daily entitlement. It would be inappropriate to permit the above employee to take a lesser number of days because they 'spent' all their holiday on their long days.

 

[Castiel]

Indeed, the relevant section of the law is:



From the link provided above.

Someone who is contracted to work 5 hours on a monday, and 10 hours on a saturday, every week, is not an irregular worker, they are a part time worker.

Precisely. I wish the RMT reps were as clueless...

 

[[TW]Fox]

If anyone wanted a reason not to join a union, this thread is surely it. Even the 'advice' they claim they are useful for giving out is suspect.

 

[Castiel]

If anyone wanted a reason not to join a union, this thread is surely it. Even the 'advice' they claim they are useful for giving out is suspect.

Actually I like unions, they can be a good way of implementing changes and as a point of contact between management and staff especially in industries like mine.

It is militancy and idiocy I can do without.

 

[AJK]

You're wrong as a tribunal would ascertain. He is not a casual worker, neither does he work irregular hours on a weekly basis. He works 20 hours a week, every week.

Surely he does work irregular hours by definition, as he does not work days of a regular length. Therefore it is difficult to correctly apply a holiday entitlement in days, so hours should be used. Why is that logic wrong?

 

[Castiel]

Surely he does work irregular hours by definition, as he does not work days of a regular length. Therefore it is difficult to correctly apply a holiday entitlement in days, so hours should be used. Why is that logic wrong?

It's about how he is contracted. He is contracted for 20 hours a week over 3 days. This is regular and his holiday entitlement is worked out thus.

His public/bank holiday entitlement will be worked out in the same way.

 

[Dolph]

Surely he does work irregular hours by definition, as he does not work days of a regular length. Therefore it is difficult to correctly apply a holiday entitlement in days, so hours should be used. Why is that logic wrong?

Irregular hours is used more where you are not contracted for a specific number of hours/days and therefore accumulate varying amounts of holiday time. It's more than casual work but not fixed. For example, going back a good few years when I worked for McDonalds, I would normally work between 30 and 40 hours a week on my 'full time' contract (as opposed to a zero hours contract for casual staff).

My holiday therefore accrued on hours worked, rather than being given a holiday allocation based on contracted hours. That's an irregular employee. Someone who works fixed hours but two different shift lengths is not an irregular employee unless you're stretching the definition, and the onus remains on the employer to ensure they get both the appropriate amount of time off, and the appropriate number of days off to satisfy the law.

 

[Castiel]

Irregular hours is used more where you are not contracted for a specific number of hours/days and therefore accumulate varying amounts of holiday time. It's more than casual work but not fixed. For example, going back a good few years when I worked for McDonalds, I would normally work between 30 and 40 hours a week on my 'full time' contract (as opposed to a zero hours contract for casual staff).

My holiday therefore accrued on hours worked, rather than being given a holiday allocation based on contracted hours. That's an irregular employee. Someone who works fixed hours but two different shift lengths is not an irregular employee unless you're stretching the definition, and the onus remains on the employer to ensure they get both the appropriate amount of time off, and the appropriate number of days off to satisfy the law.

Exactly. I can understand that it's confusing for people but it should be in his contract anyway.

I have a friend whose son works for Tesco p/time and he ended up owing them 1.25 hours because of the bank holidays last year. It's not perfect, but it's statutory and must be complied with.

A lot of firms are only giving full weeks holidays to conform with the statutory regulation (like we do) for this reason.

Anyway, in the OP's case I think he will find that he has been paid correctly, having said that he might ask if his pay should be made up to the full 20hrs if he is contracted at 20 hours MINIMUM. If it is a guaranteed minimum then they owe him 1.34 hours. OP check your contract and see your HR.

 

[Morba]

Because he wanted to get the wrong answer?

Good answer

 

[Pookie Bear]

There is some well-meaning, but inaccurate advice in this thread. As I work in employment law, there are a few points I'd like to make.

Under the Working Time Regulations, holiday entitlement is expressed in weeks (5.6), not days. This is designed to address concerns about irregular working patterns and includes many types of work, including regular weekly shifts like the OPs. When someone works the same amount of time each and every day of the week and works the same number of days a week, then converting that weekly figure to days makes sense. In a multi-shift pattern, which is how you may want to define the OP’s working pattern, working out holiday entitlement in hours is not only perfectly acceptable, it is, in my experience, pretty much used almost exclusively throughout the UK. I have never heard of an employer working out holidays averaged out over a working week as described by Castiel. Discussion with a senior colleague who has been working in Employment Law for a lot longer than me has confirmed that they have never heard of such a system being used either.

For someone who works a 20 hour week, their statutory entitlement is to 20 hours x 5.6 weeks (112 hours). If they worked equal 6h40 minute days, it would be easy (convert it to a daily figure for ease of administration) – 3 equal days in a working week, 3 x 5.6 days leave (16.8 days…at 6h40 = 112 hours). However, when you work a 6, 6, 8 hour pattern, it’s not so straightforward. Every time they take a 6 hour shift off, they should remove 6 hours from their entitlement, and for the longer day, they should remove 8 hours. This gives them access to 5.6 weeks of paid time away from the workplace – the emphasis being on pay and time – they are entitled to 5.6 weeks of each.

Averaging days is far from ideal. Working out the OPs holidays in days (when again, the entitlement is defined in weeks) might not mess him around in pay, but could short-change him on time. If he takes all his time off on 6 hour days, he might get paid enough, but has not had his full 5.6 weeks of time away from work (approximately ten hours short). If he takes all his days off on the 8 hour day, he will get more than his fair share of time away but get sufficient pay. The concepts of both pay and time are vital – both are issues which could be referred to tribunal.

Besides, the question I would ask of the businessmen in this thread, is this: why mess about averaging pay, when you can keep a running total of hours and just pay him his normal weekly wage, every single week, instead of having some weeks with 6.66 hour days? Not only is your payroll department cursing you, but you are leaving yourself open to a tribunal claim.

I won’t tell you what a tribunal will say (case law has a habit of surprising!) – I will only tell you how the system works in my experience. Argue as much as you want, but in my opinion the OP should have a word with his manager or HR team and ask them to explain exactly how they think he’s getting both the requisite time and pay when he has his leave.

 

[Deleted member 66701]

There is some well-meaning, but inaccurate advice in this thread. As I work in employment law, there are a few points I'd like to make.

Thank you!

Your explanation is exactly what I have experienced when attending employment tribunals on the same issue.

I wasn't going to bother arguing as some of the posters in this thread have an automatic aversion to any advice offered by a union rep. Nice to be vindicated though.

People that aren't involved in employment law often make the fatal mistake of not applying natural justice.

 

[Castiel]

Thank you!

I wasn't going to bother arguing as some of the posters in this thread have an automatic aversion to any advice offered by a union rep. Nice to be vindicated though.

I have never heard of an employer working out holidays averaged out over a working week as described by Castiel. Discussion with a senior colleague who has been working in Employment Law for a lot longer than me has confirmed that they have never heard of such a system being used either.

I know how we do this and it is is done by every single one of our subsidiaries which include 27,100 employees.

For example:

Full time worker is on a contracted minimum 42 hour week contract. His holiday entitlement is 5.6 weeks. HIs annual entilement is worked out by weeks (5 weeks) and public/bank holidays (8 lieu days)

His working week is made up thus:

Sun-rest
monday- 7hrs
Tuesday- Rest
Wednesday- 12 hours
Thursday-12 hours
Friday-11 hours
Sat -rest

Total 42 hours.

Now he decides to take Friday as a lieu day. We do not pay him 11 hours, we pay him 42/4 which is 10.5. If he doesn't not reach his minimum 42 hours then he is paid make-up pay, in this case 30 minutes.

If he worked 9 hours on Monday instead of 7, then he would have been over the 42 hour minimum, still received 10.5 hrs pay for his day off on Friday but not received make-up pay. (this only applies to rostered hours, not overtime, when the make-up would be added)

If he took Monday off instead of Friday, then he would also be paid 10.5 hrs, even though he was rostered for 7.

It's standard for lieu days, 8.5 hrs for a 5 day week. 10.5 hrs for a 4 day week.

We do not allow single days to be taken as holiday, only full weeks (5 weeks), any odd days are paid as above.

Given that we have the RMT breathing down our necks 24/7 if there were a problem legally it would have been pointed out by now.

Argue as much as you want, but in my opinion the OP should have a word with his manager or HR team and ask them to explain exactly how they think he’s getting both the requisite time and pay when he has his leave.

Which is pretty much what I said here:

Anyway, in the OP's case I think he will find that he has been paid correctly, having said that he might ask if his pay should be made up to the full 20hrs if he is contracted at 20 hours MINIMUM. If it is a guaranteed minimum then they owe him 1.34 hours. OP check your contract and see your HR.

I am glad I am not in the HR or Finance dept however.

 

[One More Solo]

This is still going on?!

 

[Morba]

Indeed, see manager and / or HR. Not run off to union as first point of call.

 

[Castiel]

Indeed, see manager and / or HR. Not run off to union as first point of call.

Indeed.

 

[Castiel]

This is still going on?!

Hmm, yup! Nothing like a good argument.

Have you got it sorted yet. The way I see it and as do my colleagues here is that you should be entitled to 20 hours pay regardless of how you took holiday if that is your contracted minimum and if you have not received it then you should ask why.

This might help.

http://www.acas.org.uk/CHttpHandler.ashx?id=955&p=0

 

[Pookie Bear]

We do not allow single days to be taken as holiday, only full weeks

To me this is the most appropriate point to address here as it is the major difference between your company and that which employs the OP. I fully understand the methods you use (even if I've never encountered it before this thread), I just do not believe they would be appropriate where staff can take single days as and when they want.

And for the record, I'm not arguing, I'm just saying what my experience leads me to believe - everyone else is arguing