Working more than my contract consistantly.

[Gartt]

Hi all, ive just come across this website and it seems pretty helpful so I was hoping somebody may be able to give me a little bit of advice.

Ive been consistantly working about double, even triple my contracted 10 hours for about 9 months now and Ive heard that if you work more than your contract for 12 weeks or more that its taken as acknowledgment of a new contract or some such.

 

Im asking because even though I can be working up 30-35 hours a week im still only entitled to take holiday time for my 10 hour contract.

 

Thanks.

[Sidewinder]

Im asking because even though I can be working up 30-35 hours a week im still only entitled to take holiday time for my 10 hour contract.

 

No you are not. Where you work more hours than you are contracted to, the amount of paid holiday should be based the average hours worked in the 12 weeks prior to taking the holiday. That is enshrined in Law.

 

As for the matter of working in excess of your contracted hours on a regular basis, it becomes very difficult to prove that you can expect to always work those hours due to the custom and practice of you having done so for a period of time. There is certainly no time limit used to determine what has become the 'norm' and your contract and its express terms (working hours, pay rates etc) may clarify the nature of the basis on which you are employed.

[Zamzara]

I agree Sidewinder. It's outrageous that employers are still trying this on with holiday pay.

[juliusceasor]

No you are not. Where you work more hours than you are contracted to, the amount of paid holiday should be based the average hours worked in the 12 weeks prior to taking the holiday. That is enshrined in Law.

 

 

That is very interesting can you supply links to this in law and any case law I have a friend who could benefit from this in making a claim against a previous employer.

[Sidewinder]

That is very interesting can you supply links to this in law and any case law I have a friend who could benefit from this in making a claim against a previous employer.

 

No problem. Legal minimum paid holiday entitlements set by the Working Time Regulations 1998 (as amended) and the definition of a 'week's pay' set by the Employment Rights Act 1996 (Sections 221-224)

 

Good explanations HERE and HERE

[elche]

Hi Julie,

 

Both SW and Zamzarra do know what their talking about, and the above advice is sound.

 

There are 2 elements to your question:

 

a) How much leave are you entitled to?

b) How holiday pay should be calculated when such leave is taken?

 

In respect of point (b), I just wanted to add one caveat to the above.

 

Let's look at the law. A worker is entitled to be paid for any period of leave at the rate of a week's pay for each week of leave. Sounds simple right?

 

A week's pay is calculated, as SW rightly says by WTR (reg 16) referencing you to ERA 1996 ss 221-224

 

This means that, "...where an employee has normal working hours, overtime only qualifies as part of a week's pay where the overtime is fixed under the contract of employment. The effect is that only contractual hours are included and, for example non-contractual overtime hours are not. This can lead to situations where, although the employee regularly works substantial periods of overtime, pay while on holiday is based upon the lower number of contractual hours.".

 

See for example Bamsey v Albion Engineering [2004] ICR 1083 - employee worked on average 58 hrs per week only received hol pay bassed on contracted 39 hours per week.

 

The crucial question is - Are you, in law, an employee with normal working hours who regularly works non-contractual overtime or genuinely an employee with no normal working hours? If the latter then SW is right.

 

We cannot answer this on the info provided thus far. You need to check your contract carefully, and come back.

 

Hope this helps.

 

NB This only a potential argument, and it DOES NOT mean that any advice from SW is incorrect.

 

Che

Edited January 9, 2009 by elche

[Sidewinder]

Spot on as usual Che and of course in any case such as this the theory should always be referenced to the Contract and the full details of the situation.

[astraea]

hi hopefully someone couldgive me some advice too as i am having the exact same problem.

 

i have only an eight hour contract but i have worked between 20-25 hours every week since the day i started a year and a half ago! i work the same hours same days same times every week! only through sickness etc do i not work these hours -so what am i entitled to? someone told me i should be entitled to hol based on the 25 hours i work? how do i go about doing this as i am getting sick of having 4x8hours holiday a year!!!!

 

would REALLY appreciate some help

thanks in advance

vikki

[Sidewinder]

Hi Vikki.

 

Have a look at the links given in Post #5 above and see how this relates to your situation. If you feel that you are being treated unfairly in the context of the relevant legislation, then you should raise a formal grievance quoting the relevant sections of the Working Time Regulations and Employment Rights Act as the basis for your complaint. If the grievance is dismissed without adequate reason, you should take professional advice as to whether you have a case to take to a Tribunal.

 

If you need further advice or information, open a thread of your own and it will be seen by a wider audience and you will receive feedback a little quicker.

[elche]

in any case such as this the theory should always be referenced to the Contract and the full details of the situation.

 

Yes I agree.

 

The contract + full details, will = our answer

 

In any event, I think Bamsey, is bad law and fundamentally unfair to the employee.

 

What do the Court of Appeal know anyway?

 

I actually prefer your argument, as I think do ACAS.

 

Kind regards

 

Che

[Sidewinder]

ACAS certainly do. Holiday should always be based on the actual hours worked where this is over and above the contracted hours, especially where those additional hours are paid only at standard rate. Anything less and it is potentially discriminatory, leaving part time workers particularly at a disadvantage. There is a worrying trend towards taking on part time staff who are happy to work extra hours, but without having to pay them a realistic level of holiday pay.

[Zamzara]

I don't think the contract is especially important as paid holiday cannot be contracted out of.

 

The law says holiday must be paid at a normal week's pay.

[elche]

I don't think the contract is especially important as paid holiday cannot be contracted out of.

 

The law says holiday must be paid at a normal week's pay.

 

Agreed.

 

However the calculation of a 'normal weeks pay' is the problem here.

 

This calculation will differ depending on whether the employee is viewed, in law, as an employee with normal working hours who regularly works non-contractual overtime or genuinely an employee with no normal working hours?

 

Hence leading to situations like Bamsey where the employee in the 12 weeks before he took holiday averaged 58 (ish) hours per week. However, he was only contracted to work 39 hours per week and when he took annual leave he was not paid at the 58 hours rate but the lower 39 hour rate stipulated in his contract.

 

As I said earlier, I think Bamsey is bad law, however it is a Court of Appeal decision, and is the leading case on this right now.

 

In view of the decision in Bamsey, I'm not sure how we could answer this question without the contract?

 

Kind regards

 

Che

[Zamzara]

Interesting elche. I'd never heard of that case before so I've been looking into it over the weekend.

 

It seems on the face of it to be such a bad decision that it can't be correct, because it effectively allows an employer to pay little or no holiday pay unless they choose to, by falsifying the contract. I have however found an employment appeal tribunal case since then that seems to contradict it: Sanderson and Griffin v Exel Management Services Ltd, which held that this situation cannot be normal working hours.

 

Two other lines of attack i would use are:

 

- Consistently working different hours at the request of the employer is by definition a change to the contract (or a second contract for the new hours), or in the alternative

- The employer is not complying with the requirement to give details of basic terms and conditions, because the term about working hours is false (unless the overtime is purely voluntary.)

[elche]

It seems on the face of it to be such a bad decision that it can't be correct, because it effectively allows an employer to pay little or no holiday pay unless they choose to, by falsifying the contract.

 

Agree with you 100% Zamzarra. I think it is a very unfair decision and indeed open to abuse by unscrupulous employers.

 

I have however found an employment appeal tribunal case since then that seems to contradict it: Sanderson and Griffin v Exel Management Services Ltd

 

As I stated earlier and on previous posts, I do respect your advice and your advice is sound.

 

However, in my opinion, it is incorrect to say that Sanderson et al v Excell management Services Limited, ‘…contradicts…’ Bamsey et al v Albon Engineering.

 

In fact if one looks at the HJ Silber’s judgement in Excell, Bamsay is cited at paras 6-8.

 

Excell does not overrule (or contradict) Bamsey. Excell is distinguished from Bamsay on the basis that in Excell at para 11, it was stated that (my emphasis),

 

“…the hours for which the appellants were paid did not depend on the actual hours worked but were based on what were described as “production” hours, which were a form of notional or deemed hours calculated on the basis of set formulae by which certain tasks were deemed to take certain periods of time, irrespective of how long they actually took.”

 

Hence, leading to the conclusion at para 21 that the employees in Excell could not have been viewed as having a fixed number of contractual hours because, “….fixed number of hours” means actual fixed hours … and not a notional number of hours even if it was a genuine pre-estimate.”

 

Whereas in Bamsay we had an actual ‘hours worked clause’ in the contract, and not a notional, ‘production hours’ clause.

 

I therefore submit that it is for this reason that the EAT reached the decision they did in Excell and this distinguishes Excell from Bamsay. Excell does not overturn or overrule Bamsay in any way.

 

Furthermore, I note from looking at the 22nd Edition of Tolley’s Employment Handbook, with law up to date as of May 2008 (which obviously post dates the decision in Excell), Bamsay is still cited as ‘good’ law on p.687.

 

As you know from my earlier posts, I think Bamsay is a bad decision and fundamentally unfair to the employee, but it is still ‘good law’ and would, in my humble opinion, have to be adhered to.

 

Kind regards.

 

Che

[Zamzara]

Very interesting (albeit depressing). Thanks.

[jean h]

I am new to this and was wondering is anyone can help me.

I have just been made redundant after 16 years, my hours have changed considerably over the years and although my contracted houts are 5.5 per day 3 days a week 6 months a year i have not worked these hours for many many years.i do consistantly 3 full days. My redundancy was based on my contracted hours and i got 2k! Should i have been paid based on my full days? Should sickness and holiday be based on full days and can i claim back for being underpaid all these years? thanks