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Holiday Pay Advice Needed Please


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This may end up long winded, so I apologise in advance.

 

I worked for a small domiciliary care company for exactly 6 months. I had found a 21 hour a week job with the local authority in one of their care homes and intended to work both jobs. With the 2nd job being for the local authority there is a lot of training to do and the care manager at the domiciliary company made it perfectly clear that she was not willing to work around the 2nd job.

I had intensive training to do for the first 2 weeks in the new job so decided to resign from the domiciliary company with immediate effect, that is where the fun began.

 

I received a text from the care manager telling me that the owner of the company had said that if I did not give a months notice then she could keep a weeks pay and I had to repay any holidays that I had taken that were over-paid.

 

I spoke to ACAS and was told she could not keep wages for the hours I had worked and after a bit of email ping-pong she paid what was owed but then the holiday pay drama began.

 

To begin with, she told me she had paid me 16 days holiday pay so I had been over paid 2 days, then she sent another email stating she has paid me 18 days resulting in an over payment of 4 days.

 

Luckily I had worked for this lady before and have kept records!

 

Here is where she states I have been overpaid 4 days.

 

 

Thank you for your email.

I have checked your records regarding your holiday pay. You took holidays on the following dates.

August 2016 27th, 28th,

October 2016 3rd, 4th, 6th, 7th, 10th, 11th and 12th.

December 2016 16th,19th, 20th,

January 2017 24th, 25th, 26th, 27th, 30th, 31st

February 2017 2nd and 3rd.

This equates to 20 days. As a full time employee you are entitled to 2.33 days per month. You worked for a total of 6 months therefore ecruing 14 days.

You were not paid for all your annual leave in December but did receive £50.40 holiday pay which equates to 7 hours ie 1 shift. Therefore you took 2 days unpaid in December 2016. Therefore you have been paid for 18 days annual leave. This means you have been overpaid for 4 days annual leave. 4 days x 7 hours @£7.20 = £201.60.

I was prepared to overlook this however if you would like me to pay you for the 7.5hrs +2.5hrs you state i owe you i will gladly do so , this equals £82.00 (hourly rate plus petrol) . I would then be grateful if you could refund to me the holiday pay that you owe me.

However if you would like to leave the situation as it is please let me know.

 

I have not been paid for any of the January 2017 leave as the pay date prior to me going on holiday was 24th Jan, so those dates would have been paid at the end of February.

 

I have actually been paid 12 days holiday pay and she owes me 2 days. I have emailed her to the effect but have not had a response.

 

My issue is, how much am I owed. In another email she has stated that holiday pay is based on the 2 previous weeks worked. I have looked at various sites and they all say holiday pay is based on the previous 12 weeks worked?

 

In total, I have received £424.80 holiday pay and the hours I have worked are -

 

Regarding the outstanding holiday pay and it being based on the 2 previous weeks, I have kept records of the hours I worked and are as follows -

W/E 07/08/16 49.25 hours

W/E 14/08/16 44.5 hours

W/E 21/08/16 57.25 hours totalling 151 hours over 3 weeks.

 

W/E 28/08/16 43 hours

W/E 04/09/16 49.75 hours

W/E 11/09/16 42.5 hours

W/E 18/09/16 63.75 hours totalling 199 hours over 4 weeks.

 

W/E 25/09/16 35.5 hours

W/E 02/10/16 20.75 hours

W/E 09/10/16 ON HOLIDAY

W/E 16/10/16 38 hours

W/E 23/10/16 39.25 hours totalling 133.5 hours over 5 weeks.

 

W/E 30/10/16 67.5 hours

W/E 06/11/16 41.5 hours

W/E 13/11/16 54 hours

W/E 20/11/16 37.5 hours totalling 200.5 hours over 4 weeks.

 

W/E 27/11/16 52.75 hours

W/E 04/12/16 33.5 hours

W/E 11/12/16 46.75 hours

W/E 18/12/16 21.25 hours totalling 154.25 hours over 4 weeks.

 

W/E 25/12/16 32 hours

W/E 01/12/16 26.25 hours

W/E 08/01/16 44 hours

W/E 15/01/16 27.75 hours

W/E 22/01/16 48.5 hours totalling 178.5 hours over 5 weeks.

 

Plus the final 10 hours I worked for you totals 1026.75 hours.

 

I sent her the above breakdown last week, but foolishly didn't give her a timescale to reply. I intend to send another email tomorrow.

 

I would really appreciate it if somebody could look over the figures and let me know roughly how much I should have been paid.

 

If needs be I will take her to small claims over this. I was paid at a rate of £7.20 per hour and don't have any sort of contract with her. As stated, I have worked for her in the past and went back to her after 18 months in another job and there was no paper work done at all, not even a new CRB/DBS check.

 

Thanks in advance for your help.

 

Elaine (Mrs Huggy)

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according to the gov.uk calculator you were due 123 hrs 49 minutes paid leave for those hours worked. As you cannot easily calculate a daily rate you should use the amount paid for a week/days holiday taken and work out how many hours that is the equivalent to. as your pay is fixed at £7.20 it should be easy to do the sums.

 

As you werent properly contracted by the company the parting of ways is a moot point, neither side can argue that theirs was the right way regarding notice so I wouldnt be pursuing that too far. The lack of following other parts of employment law will have a richer seam to mine.

Edited by honeybee13
Paras.
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Hi, thanks for the reply.

I am getting ready to fire an email off. Something along the lines of this -

 

Dear ??????

As you have not replied to my email of 7/03/17 with regards holiday pay, I have taken steps in researching the situation regarding the under payment both with ACAS and the UK Government website .

I have attached a screen print of the of the results from the official UK GOV. website

You will see that i worked a total 1026.75 hours during my employment which when inputted into the governement calculater my holiday entitlement equates to 123 hours & 55 minutes (rounded up to 124) and as you have stated that holiday pay is paid at £7.20 per hour that totals £892.80.

To date i have only received £424.80

Therefore there is a shortfall of £468 which is legally due to me under employment law.

I would like this money paid into my bank account no later that 28/03/17

Should you fail to do this than i will make an application through the small claims court for monies owed, I will also be requesting interest and my costs in bringing this action.

 

Does this sound ok or should I make changes?

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Change of email, I've just spoken to ACAS and composed this.

 

I have just spoken to ACAS regarding holiday pay as you have not responded to my previous email.

 

They have informed me that holiday pay based on the previous 2 weeks work is usually used for seasonal workers i.e. fruit pickers etc and that if somebody is in continuous employment then holiday pay would be based on hours worked over the previous 12 weeks.

 

Because I am no longer employed by you, holiday pay is based on hours worked and ACAS advise using the government holiday pay calculator Calculate holiday entitlement - GOV.UK

 

Calculate holiday entitlement - GOV.UK

 

 

I have used this and inputted the hours I worked which were 1026.75 and this calculates that my statutory entitlement is 123 hours 55 minutes. which would usually be rounded up to 124 hours.

 

Based on this, my statutory holiday pay should be 124 x £7.20 which equals £892.80. I have already received £424.80 meaning there is a shortfall of £468.

 

I would appreciate it if you could pay the outstanding amount into my account by 31/03/17.

 

If the situation has not been resolved by 31/03/17 I have been advised to take the matter to the small claims court where I can request costs and compound interest.

 

Please consider this email as notification of my intention to apply to the small claims court.

 

Is it ok and can I claim compound interest?

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OH MY WORD, SOMEBODY PLEASE ADVISE

 

Just received this is response to the email I sent.

 

Start of employment 28th July-6th February = 6 months at 2.3 days = 13.8 days A/L

October 2016 took 5 days paid £259.20

November took 0

December took 1 days paid £50.40

January took 2 days at 8 hours paid £115.20

Therefore due 5.8 days A/L @ 7 hours per day x ££7.20 = £292.32.

However if you check you will find out you do not have a contract for this period of employment. Having received a P45 when you last left our employ, you would need to sign a contract to be classed as continually employed. Anyone not signing a contract is classed as bank or zero hours contract and is therefore not entitle to ANY holiday pay.

I have checked with ACAS and because you have no valid contract i do not have to pay you any more and could actually apply to get back the holiday pay that i have paid. Of course I have no intentions of doing this Elaine

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doesnt matter about contracted hours it is about actual hours worked. There is a maximum holiday pay entitlement under law so if you work 14 hours/day 7 days/week you still only get the 5.6 weeks pay. Any contract you have can enhance that, of course, but cannot diminish it.

 

By saying you do not have a contract of emloyment they are admitting that they are breaking the law. That wont impress anyone when it comes to settling a dispute. They are also wrong about people on zero hours contracts so again I wish them well progressing that one. I work on a zero hours contract and get holiday pay. i dont get sickness pay, any guarantees of work and cant join the pension scheme even if I wanted to but paid a/l? Definitely. Stupid people.

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Guest Mrs Hobbit

Hobbit works on Zero hours contract, he gets holiday pay for the hours he has worked. She is definitely wrong.

 

Hobbit when he worked another employer two years ago, six years holiday pay was due to him when he left, no contract at all, so carefully worded letter to the then employer with spreadsheets for annual hours works at hourly rate of pay. it got nasty, but he was paid over £6000.00 in holiday pay owed to him for those six years.

 

Threaten Employment Tribunal if she does not abide by Employment Law.

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if you work more than a certain number of hours per week/year and get paid more tha a certain amount she is supposed to. However, you will have to had signed an agreement as to what pension fund it goes into, even if they have a default one they would automatically use if you dont provide details of your own scheme membership.

 

Something else to look into. Demand to know what the scheme is called, who runs it and a statement of your contributions

 

You may be reporting her to the police if the answer isnt forthcoming and the Pensions Agency cant find her on their list.

 

Oh, you might have given a bit more ammo there, she was deducting money from my wage towards my pension!
Edited by honeybee13
Paras.
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Hi, just looked at my payslips and there have been deductions into "Stakeholder Pension" Aug £4.90, Sept £7.82, Oct £3.53, Nov £7.73 Dec £5.34. Nothing deducted in January 2017 which seems strange because it was a high wage because of all the Christmas Bank Holidays. Just looked on Gov.UK and it states that employer must write and advise that they have enrolled you onto a scheme. Not had any letter!

I will be emailing tomorrow to ask for a statement of my pension pot - all £29.32p of it!

 

Also, have never received a written statement of employment but ACAS website says this should be issued within 2 months of starting work BY LAW! Did think about requesting one but it's easy to put an old date on a letter, might see how it plays out and send a non-specific SAR request at a later date - can you SAR a previous employer?

 

Just an afterthought too, I recently realised that although she has been deducting NI, she has not deducted any tax at all. Tax office will be adjusting my tax code for 2017/18 to rectify this.

 

If the woman had just paid me for the hours I had worked I probably wouldn't have even thought of questioning the holiday pay issue (she brought it up by saying I had been overpaid), on the upside, I am learning about employment law, on the downside, I should be doing the coursework for my new employer. Oh well, nobody can say my idle hands (or brain) are working for the devil.

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to answer one of your questions out of sequence- you can SAR anyone who holds data on you. Some people and organisations will be exempt thoug so dont SAR you granny because you want copies of pictures of you when you were a child! For the moment I wouldnt be doing that, you are entitled to certain information by law as an employee so use that procedure first. As you didnt hae one, why ask, just point out that it wasnt provided as the law prescribes, she cant just send one out that hasnt been agreed and claim it is a true copy then. If she reckons she is going to sue you for the overpayment that will be the best thing for you in this matteras the riskmis all one way.

So what to do. Get on to the DWP about NI contributions and pension. They should have the details. If not then you will need to compose a letter that asks all of the relevant questions but find out waht you can from elsewhere first. When you have the info(if available) you can writedemanding the paymenyt of the monies due and then lay down the law as to why her other comments and actions are not up to scratch. Then let her respond before deciding if you fancy a day in court at her expense.

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Ok so another week has passed and no word from her, not even the statement of pension I have requested. I am going to send this email now.

Hopefully this will resolve things.

Is there anything I need to add?

 

Dear,

 

I am disappointed to see that you have not responded to my email of the 14th March 2017, a copy of which is here -

 

,

 

I have just been back on the phone to ACAS and the gentleman I have spoken to has confirmed that you do not need a contract to accrue holiday pay, you are entitled to holiday pay by law, even as a bank worker or on a zero hours contract as stated in The Working Time Regulations. He also confirmed that because was I have left your employ I would use the government holiday pay calculator to determine how much holiday pay I am entitled to. He also stated that ACAS would not advise an employer that an employee was not entitled to holiday pay as all employees regardless of contract or not are entitled to Statutory Holiday Pay.

 

He advised that I give you 7 days from today to correct the issue and has sent me a pack to take things further if we cannot resolve the matter.

 

Elaine

 

In a previous email you stated that you considered me a zero hours contract worker and as such was not entitled to holiday pay, I feel you have been misinformed on this point as the law changed on 26.05.15 and the ACAS website clearly states that zero hour contract workers and entitled to annual leave and holiday pay.

Zero Hours Contracts | Acas advice and guidance | Acas

 

Zero Hours Contracts | Acas advice and guidance | Acas

 

Also, as a zero hours employee, the law states that -

A zero hours contract is generally understood to be a contract between an employer and a worker where:

the employer is not obliged to provide any minimum working hours

the worker is not obliged to accept any work offered.

If this is the case and if the rules were being followed properly I could have still been in your employ, I felt I had no option but to leave when I was told via text message that "I've got people on holiday this week elaine can you do wood house on Wednesday. we have struggled all weekend and this is your primary job we cannot fit in around wood hill sorry". I received this text from C on 05.02.17

 

As you are aware I have been in touch with ACAS and because of the nature of the job and the irregular hours worked I was advised to use the government holiday pay calculator which is found by clicking the link under the heading irregular hours on this page. Holiday entitlement - GOV.UK

 

Holiday entitlement - GOV.UK

Holiday entitlement or annual leave - information for employers and workers on entitlement, calculating leave, t...

As you are also aware, I have kept a record of the hours I worked on a weekly basis and in total I worked 1026.75 hours which equates to 123 hours 55 minutes statutory holiday pay due to me, as I have already received £424.80 in holiday pay there is a shortfall of £468.

 

Because you may not have been made aware of the changes in legislation on 26th May 2015 I am happy to give you a little more time to do some research, therefore, if this matter is not resolved by 5pm on Friday 31st March 2017 I will have no alternative but to commence legal proceedings against you to get the monies that are rightfully mine.

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What change to legislation? If you are going to cite such a change you need to be specific about what the change was, which piece of legislation it relates to and how it affects your case

 

So far as I am aware the change that was made was to introduce the Exclusivity Terms in Zero Hours Regulations 2015 but so far as I can see from your thread, although there was an issue relating to exclusivity, your argument is over the amount of holiday pay due. To link your claim for outstanding holiday pay to the legislation you will need to demonstrate the the employer has failed to pay amounts due BECAUSE you wished to hold a second job elsewhere and I cannot see that this is the case. Whilst you do seem to have a relevant argument somewhere within what you have said, this would appear to be more to do with Working Time Regs and holiday pay than it being directly related to the ZHC

 

You need to be careful when quoting law that you use it appropriately and with relevance to your case - you have suggested that the employer researches this, but at the same time it does not appear that your own research has pointed you in the right direction. Unless I have missed something obvious!

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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dont email, send a letter. emails get ignored as people dont understand that they are formal communications so give your words some gravitas and make them drop through her letter box and that forces her to open the envelope and hold the words in her hand. all psychological reinforcement of the seruiouslness. Again, dont say dear elaine, she isnt your best friend so make it formal dear Mrs XX and you sign it Yours faithfully Ms YY In the middle you ak eit sound like a conversatio with i have just been back to ACAS- say that ACAS state that.... instead.

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