Please can someone give me some advice with regards to the issue of holiday pay entitlement if a person is working term time only on a zero hour contract?

I currently work for a taxi company as a passenger escort for school runs. I work 39 weeks in term time only on a zero hour contract. I am not classified as self employed as I don't run my own business as they provide the work we do and they pay our tax and national insurance contributions. I only started employment with them on the 9th May 2016 and I haven't taken any paid holiday from that date to this year. I have been requesting about paid holiday since the day I started but they are insisting that I am not entitled to any kind of holiday pay. The reason why they say is because I am a zero hour contract worker.

They also say that their business has been running for 5 to 6 years and all the other drivers and escorts who are on a zero hour contract are aware they are not entitled either.

I have spoken to them on the phone a few times and have also sent them emails and they are saying that there is no point in keep on asking about it as I am wasting my time.

Please can someone throw some light on this?

Thankyou for any advice

BF X

A Zero Hours Contract makes no difference whatsoever to holiday entitlement - all employees are entitled to statutory paid holiday to the equivalent of 5.6 weeks holiday per year

Is it possible that they are paying rolled up pay - an additional rate to standard pay to allow for holiday? Not strictly speaking lawful, especially if you are unaware of it, but any statement that holiday pay is not required due to you being on a ZHC is absolutely wrong

A Zero Hours Contract makes no difference whatsoever to holiday entitlement - all employees are entitled to statutory paid holiday to the equivalent of 5.6 weeks holiday per year

 

Is it possible that they are paying rolled up pay - an additional rate to standard pay to allow for holiday? Not strictly speaking lawful, especially if you are unaware of it, but any statement that holiday pay is not required due to you being on a ZHC is absolutely wrong

Hi Sidewinder,

Thankyou so much for your response and for guiding me in the right direction.

As far as I do know that I indeed am and have been paid only my basic net wage each month since I started which consists of the NMW obviously minus the tax and NI.

Given your reply, I am certainly going to keep on pursuing this entitlement as I am only requesting what they should be paying.

Please can you advise what my next step should be?

Many thanks,

BF X

Both employees AND workers are entitled to holiday pay.

I would suggest that you write a formal letter asserting your right to holiday pay for the entire history of your employment. If you have a record of hours worked, you could work it out yourself. If not, they'll have to disclose it as part of Employment Tribunal proceedings.

My understanding is that if you're prevented from taking holiday by your employer then the law currently states you can claim any back paid holiday pay regardless of the statutory 15 months back stop... but I'm no longer practicing law so I could be talking bobbins! So in short, you could claim everything you're owed to this date plus anything owing in the future...

Both employees AND workers are entitled to holiday pay.

 

I would suggest that you write a formal letter asserting your right to holiday pay for the entire history of your employment. If you have a record of hours worked, you could work it out yourself. If not, they'll have to disclose it as part of Employment Tribunal proceedings.

 

My understanding is that if you're prevented from taking holiday by your employer then the law currently states you can claim any back paid holiday pay regardless of the statutory 15 months back stop... but I'm no longer practicing law so I could be talking bobbins! So in short, you could claim everything you're owed to this date plus anything owing in the future...

Hi Becky,

Thank you so much for your reply.

I will absolutely take all of what you have said on board.

I am currently at present working roughly about 30 hrs per week but when I first began working for them it was about 25 hrs per week when I was allocated onto my very first route. I have now got a fairly longer route which as I say is about 30 hrs.

I was trying to work out the sums myself but I haven't got a clue how to do it as I am not quite sure how to work it out to take into account the 39 weeks that I work?

I think I will have to go back and have a look at all my wage slips or time sheets for the entire past year to work this out. And I will also then contact my employers to remind them of their obligations with regards to my entitlement.

Becky,what happens if I still don't get anywhere with this? How do I go about starting Employment Tribunal proceedings?

Many thanks for your help.

Kind Regards BF x

Yes it's a rather complex situation. Have you got a written contract with them? (If not, you're not a zero hours worker anyway).

It's possible that you work 52 weeks a year even though your contract is only 39 weeks for continuity purposes, but it depends whether the job you're doing is treated as such. You'd have to check with an employment lawyer for a definitive answer. As SW says though, the starting position is 5.6 weeks/28 days leave per year, which would be pro ratad to take into account the proportional weekly hours you work and the proportional 39/52 weeks. Holiday usually accrues at a rate of 12.07% of hours worked.

The first step is to contact ACAS to commence early conciliation - and get your claim down in writing in the form of a grievance to offer a degree of legal protection against any detriment suffered in the future. Once you have completed the EC process, you'll either have a settlement or a certificate which allows you to bring an ET claim.

It's a difficult calculation though - if you can get any legal help, id take it. Probably not worth instructing a solicitor privately, but you might have legal cover if you have home contents insurance.

It's a difficult calculation though - if you can get any legal help, id take it. Probably not worth instructing a solicitor privately, but you might have legal cover if you have home contents insurance.

Alternatively, check to see if there is a community law centre in your area. They can offer free legal advice on a range of issues and often have qualified solicitors on hand.

12% of hours worked in that year, paid in the beginning of the next year. That is what one of my school contracts says so that wil be the worst case scenario for you. The other one |I have allows the 12% to be claimed any time but TBH it would be a bit silly for me to claim holiday pay in dribs and drabs but it may suit you to claim that accrued jan-jul in the summer vacation and the sept-dec in jan the next year.

The company may just be ignorant or they my be delibertae in their deceit so ask in writing first and then see how they respind before whacking them with the formal claim vis the courts

Yes it's a rather complex situation. Have you got a written contract with them? (If not, you're not a zero hours worker anyway).

 

It's possible that you work 52 weeks a year even though your contract is only 39 weeks for continuity purposes, but it depends whether the job you're doing is treated as such. You'd have to check with an employment lawyer for a definitive answer. As SW says though, the starting position is 5.6 weeks/28 days leave per year, which would be pro ratad to take into account the proportional weekly hours you work and the proportional 39/52 weeks. Holiday usually accrues at a rate of 12.07% of hours worked.

 

The first step is to contact ACAS to commence early conciliation - and get your claim down in writing in the form of a grievance to offer a degree of legal protection against any detriment suffered in the future. Once you have completed the EC process, you'll either have a settlement or a certificate which allows you to bring an ET claim.

 

It's a difficult calculation though - if you can get any legal help, id take it. Probably not worth instructing a solicitor privately, but you might have legal cover if you have home contents insurance.

Hi Becky, Mr P and ericsbrother

Since you posted I have now taken the steps today with regards to your advice of getting in contact with Acas. A conciliator will be getting back to me in due course but she has started the ball rolling as it were.

In regards to my contract, it is a rather short one printed on a sheet of A4 paper with only about 8 bullet points to it. (I hope it is ok to tell you here what is printed on it?)

These bullet points sets out the company's terms and conditions. The first one says 'we will initially offer you a zero hour contract' which the ZHC bit is printed in bold. Also says 28 days notice required before leaving us, on which date when salary will be paid etc. However, there is nothing written about annual paid leave entitlement.

I think I will also pop into my local CAB office at some point and see what advice they can also give me.

Mr P, I will also look for a community law centre if there is one near me. Thank you for your reply.

BF x

12% of hours worked in that year, paid in the beginning of the next year. That is what one of my school contracts says so that wil be the worst case scenario for you. The other one |I have allows the 12% to be claimed any time but TBH it would be a bit silly for me to claim holiday pay in dribs and drabs but it may suit you to claim that accrued jan-jul in the summer vacation and the sept-dec in jan the next year.

The company may just be ignorant or they my be delibertae in their deceit so ask in writing first and then see how they respind before whacking them with the formal claim vis the courts

Hi ericsbrother,

Thank you for your reply. I really appreciate it.

The tricky bit is that there is no mention of annual paid leave entitlement written on my contract. So I wouldn't even know where to begin of how to work out the calculations.

One thing I do know is that I have managed to add up all my working hours from my time sheets for the last year which roughly works out as about nearly 1,000 hrs worked in term time only for 39 weeks. I am on NMW.

Many Thanks

BF x

it doesnt have to be written into the contract, it is the law under the working Time Deirective. The contracts i have merely spell out the mechanics of how it is paid

How to start? Well, as they say start at the beginning. Assume that the year starts on Jan the 1st and finishes on Dec 31st If the employer wants to claim that other date are applicable (for example school year) then they have to show this but ultimately that will be after an admission they are in the wrong.

Howe to calculate your annual entitlement? Add up the number of hours worked in a day, multiply by the number of days worked in a week and then weeks in a year until you have the total number of hours worked in a year. Multiply that number by 0.12 and you get the number of hours pay due as holiday pay. If the employer wants to use whole days then they must round up to the nearest day, not round down.(generally 38 weeks in a school year so a/l entitlement would be 18.269 days-or rounded to 19 days pay )

it doesnt have to be written into the contract, it is the law under the working Time Deirective. The contracts i have merely spell out the mechanics of how it is paid

How to start? Well, as they say start at the beginning. Assume that the year starts on Jan the 1st and finishes on Dec 31st If the employer wants to claim that other date are applicable (for example school year) then they have to show this but ultimately that will be after an admission they are in the wrong.

Howe to calculate your annual entitlement? Add up the number of hours worked in a day, multiply by the number of days worked in a week and then weeks in a year until you have the total number of hours worked in a year. Multiply that number by 0.12 and you get the number of hours pay due as holiday pay. If the employer wants to use whole days then they must round up to the nearest day, not round down.(generally 38 weeks in a school year so a/l entitlement would be 18.269 days-or rounded to 19 days pay )

Thank you so much ericsbrother,you have helped me immensely with the above calculations. Thank you for taking the time to help and this goes to everyone who has contributed so far to this thread.

I didn't expect to be in this position as I would have thought that at least most, if not all employers knew what their obligations were. My employers are being very difficult to deal with to say the least and it is just so very mentally exhausting trying to chase up what you are entitled to.

As you may have noticed under my avatar I have been a member of CAG since going back to 2007 but I have only occasionally bobbed on and off to post from time time. But it's always good to know that CAG is always here to help people with a whole wide range of problems and I hope CAG stays here for many years to come. The help and advice is valuable.

Anyhow, the conciliator from Acas will be getting back to me sometime tomorrow afternoon as she had informed me that she only works on certain days. When I speak to her tomorrow I will come back to update what will happen next.

BF x

Thank you so much ericsbrother,you have helped me immensely with the above calculations. Thank you for taking the time to help and this goes to everyone who has contributed so far to this thread.

 

I didn't expect to be in this position as I would have thought that at least most, if not all employers knew what their obligations were. My employers are being very difficult to deal with to say the least and it is just so very mentally exhausting trying to chase up what you are entitled to.

 

As you may have noticed under my avatar I have been a member of CAG since going back to 2007 but I have only occasionally bobbed on and off to post from time time. But it's always good to know that CAG is always here to help people with a whole wide range of problems and I hope CAG stays here for many years to come. The help and advice is valuable.

 

Anyhow, the conciliator from Acas will be getting back to me sometime tomorrow afternoon as she had informed me that she only works on certain days. When I speak to her tomorrow I will come back to update what will happen next.

 

 

 

BF x

Hi,

Since my last post regarding the ACAS conciliator getting back to me, I am still waiting. However, she did say the last time I spoke to her on the phone she will contact my employers but she didn't inform me when on what day etc.

Nevertheless, I have since received an email from my works office asking me to attend a meeting with the boss scheduled for tomorrow morning.(Saturday)

Am I right in saying that this would be the result of the conciliator's phone call to initiate the early conciliation? to maybe come to a resolution? I am getting rather worried and anxious about this meeting (I suffer from anxiety and this gets worse under stressful situations.)

I am hoping the employer will be alright. But I think I am expecting the worse to be honest. I also have to travel a two hour return trip to their office which I am not really keen to do in this heat. But I have to.

Has anyone else been through this same procedure (if that's the right word!) or does anyone know what I might be expecting? I guess this is a silly question on my part and I know what I would like to expect is for them to grant me my annual paid leave as stipulated under the Working Time Regulations..

BF x

How was your meeting?

How was your meeting?

Hi griffzilla,

The meeting (early conciliation) this morning didn't go down very well unfortunately. I have spent most of the day very shocked and upset and in tears as it has been emotionally draining.

My employer is still refusing to pay the accrued holiday pay that is owing. He said to me very sharply that I am wrong and he is right. And he says he will fight it all the way to the tribunal.

He is also trying to change my contract so that he doesn't have to pay any annual paid leave to me or anyone else at all.

He says that I have to pick one of two choices: either go self employed or he wants to pay me much less every month and split my annual salary into 12 equal monthly payments which the amounts he quoted will be much less than what I am earning now. I suppose this is another way of him getting out of paying annual paid leave.

He has given me a warning with two final ultimatums and 28 days to make a decision that;

if I do take him to the tribunal he will fire me after the 28 days has expired or if I don't go to tribunal he is willing to extend my contract with the new changes implemented in place.

(I said at the end of the meeting that I don't really want to go to ET but as I have no other choice I will be seeing him at the tribunal.)

I just can't believe this is happening as I am quite happy with my job and I have been working for him for the past 14 months with no other problems at all and this situation has knocked me for six.

I will need to contact the ACAS conciliator again and inform her of the result of the meeting.

One other problem: he has delayed paying my wages for this month and will not be paying it until Monday. He has never delayed paying my wages in the last 14 months. In fact, he has always paid much earlier than this so I think this situation has a lot to do with that. (The payment dates are anywhere between the 1st and 10th of each month but on this occasion he has left paying it until the very last day)

If anyone is around this evening, please can someone be kind enough to tell me where I go from here apart from pursuing a claim to an employment tribunal.

BF x

That's horrendous behaviour.

You need to raise a grievance, in writing, which complains about ALL of the above threats. You're protected against detriment or dismissal in the circumstances and you're potentially being subjected to both! It's incredibly important to write it all down now so that you have evidence for the ET. And do it before he sacks you!

Have a read of this article. https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals-from-29-july-2013/making-an-employment-tribunal-claim-is-it-worth-it/detriment-claims/employment-tribunals-legal-tests-that-apply-to-detriment-claims/

What Becky said, but with added expletives.

I don't suppose he put any of this in writing did he?

Hi griffzilla,

One other problem: he has delayed paying my wages for this month and will not be paying it until Monday. He has never delayed paying my wages in the last 14 months. In fact, he has always paid much earlier than this so I think this situation has a lot to do with that. (The payment dates are anywhere between the 1st and 10th of each month but on this occasion he has left paying it until the very last day)

What is your pay date, as per your contract?

That's horrendous behaviour.

 

You need to raise a grievance, in writing, which complains about ALL of the above threats. You're protected against detriment or dismissal in the circumstances and you're potentially being subjected to both! It's incredibly important to write it all down now so that you have evidence for the ET. And do it before he sacks you!

 

Have a read of this article. https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals-from-29-july-2013/making-an-employment-tribunal-claim-is-it-worth-it/detriment-claims/employment-tribunals-legal-tests-that-apply-to-detriment-claims/

What Becky said, but with added expletives.

 

I don't suppose he put any of this in writing did he?

What is your pay date, as per your contract?

Hi Griffzilla and Becky,

No he didn't put any of this meeting in writing at all. So its my word against his I think?...yes I agree about the expletives! I certainly feel like that.

It says on his so called contract that wage payments will be issued anywhere between the 1st and 10th of each month. But it doesn't state anything else regarding payments. So you are left guessing every month on what day you are going to be paid. This plays havoc with my monthly bills and DDs etc.This is another issue I have tried to challenge them/him about a while ago but that doesn't really get me anywhere either. I really don't know how I have managed to be honest. But you learn to juggle things about.

As I say he has never paid me this late before for all the 14 months I have worked for him. I have definitely opened up a can of worms. I was supposed to pay my rent and council tax earlier this week as my rent was due on the 1st but can usually wait until the 3rd or 4th of each month by the latest. (They/he have normally paid our wages by then.)

Becky, yes I will definitely raise a grievance about these other things. I am just so shocked about how all this is escalating.

Sorry I forgot to ask; with whom do I raise the grievance to? as my employer who I had the meeting with is the one who hires and fires and he is also the director of the company?

thank you so much for all your help so far..

BF x

Hi Griffzilla and Becky,

 

No he didn't put any of this meeting in writing at all. So its my word against his I think?...yes I agree about the expletives! I certainly feel like that.

 

It says on his so called contract that wage payments will be issued anywhere between the 1st and 10th of each month. But it doesn't state anything else regarding payments. So you are left guessing every month on what day you are going to be paid. This plays havoc with my monthly bills and DDs etc.This is another issue I have tried to challenge them/him about a while ago but that doesn't really get me anywhere either. I really don't know how I have managed to be honest. But you learn to juggle things about.

 

As I say he has never paid me this late before for all the 14 months I have worked for him. I have definitely opened up a can of worms. I was supposed to pay my rent and council tax earlier this week as my rent was due on the 1st but can usually wait until the 3rd or 4th of each month by the latest. (They/he have normally paid our wages by then.)

 

 

Becky, yes I will definitely raise a grievance about these other things. I am just so shocked about how all this is escalating.

 

Sorry I forgot to ask; with whom do I raise the grievance to? as my employer who I had the meeting with is the one who hires and fires and he is also the director of the company?

 

thank you so much for all your help so far..

 

 

BF x

I have just read the link you gave me Becky and it makes for very interesting reading. I really didn't know that you could raise a detriment claim. It does seem that I will eventually be going down this path as it were.

But first I will type up the grievance. However,it is difficult to know who to give it to as the employer it seems is a one man band with regards to dealing with any issues. He does have other admin staff who work with or under him but he is the main one who I have to complain to and the same one who I am making the claims against at the same time if that makes any sense and I know he will ignore or disregard the grievance that I am raising.

BF X

Theoretically they should have a grievance procedure, but if they believe you're a worker or self employed then it won't apply.

But I'd do it anyway, just to protect your legal position. Ordinarily you would raise it with your line manager in the first instance - but if it's a one man band, you can only raise it with him.

At this point it's not really about getting it resolved, as he is so far ignorant of employment law that he probably won't even understand the legal implication of receiving a grievance. The point is that you'll have contemporaneous evidence of threatened detriments that you can present to the ET.

Bloomingflower,

This is horendous treatment. I feel for you, and as a HR Manager for 350 employees, would never even consider treating someone in this way.

The advice previously posted here should certainly help, but just adding my support, and wishing you good luck with the outcome.

Bloomingflower,

 

This is horendous treatment. I feel for you, and as a HR Manager for 350 employees, would never even consider treating someone in this way.

 

The advice previously posted here should certainly help, but just adding my support, and wishing you good luck with the outcome.

Hi BeauBrummie,

Thank you so much for taking the time to post this morning and for your support. I really do appreciate it.

To be honest I just couldn't sleep properly last night after going to bed quite late. My head is all over the place at the moment worrying about the future. I have got out of bed up early this morning which is quite unusual for me on a Sunday. I normally work 5 days and do enjoy my lie ins when I can (when I can sleep!)

Nevertheless, I sat up last night drafting my grievance letter as advised by everyone who has kindly posted while everything is still fresh in my mind. I have saved it to docs and I will tidy it up a bit later (after a few cups of tea!)

I just wish that I didn't have to pursue all of this in this way. I have thoroughly enjoyed doing my job the past 14 months and I will miss the children who I escort for. If that gets to the point of me losing my job.

My only fault, so to speak, is asking for my annual holiday entitlement which is why I am now in this mess. I have worked for many companies undertaking many different kinds of jobs since I was 16 but I have never in a million years ever come across something like this.

My employer is also the owner/director of the company. He is a one man band who also does the interviewing, hiring and firing.

The one thing that is disturbing me over the past few weeks is that I actually felt sorry for him (yes stupid me) because he confided and said to me 'we are struggling due to the Government/council cutbacks' and he quite clearly stated that he could not afford to pay this, that and the other. I then discovered to my amazement that he pulled up in a Porsche convertible. If this is not a contradiction then I don't know what is. He pays himself very well so it seems.

(This was before I discovered that I was indeed entitled to all the holiday that I accrued the past 14 months.)

I have been breaking down in tears every now and again as this has been getting all too much for me. (I have suffered from depression for which I am still taking medication for.)

He is certainly going to be playing hardball on this on refusing to pay all his workers annual paid leave.

So I will just have to buckle up (pardon the pun) and learn to do the same thing.

BF x

Theoretically they should have a grievance procedure, but if they believe you're a worker or self employed then it won't apply.

 

But I'd do it anyway, just to protect your legal position. Ordinarily you would raise it with your line manager in the first instance - but if it's a one man band, you can only raise it with him.

 

At this point it's not really about getting it resolved, as he is so far ignorant of employment law that he probably won't even understand the legal implication of receiving a grievance. The point is that you'll have contemporaneous evidence of threatened detriments that you can present to the ET.

Hi,

I am just tidying up the grievance letter and just wanted to ask; what happens if you have more than one grievance? do I type it all on the same sheet as the one I am doing for the non payment of annual holiday leave? or do I type them onto a separate sheet and present them to him separately? some grievances are related to the annual pay but some are not.

However, I can now safely say that the penny has completely dropped after having the time to reflect on whats been going on the past few weeks/months. My employers mistreatment of me and his change of behaviour is no coincidence so I would like to also include these other grievances onto the grievance letter.

BF x

Yes - type all of your grievances on the same letter.