Calculating holiday and notice pay

[Kelloggs36]

I shall try to explain the situation. My DD started a job on 20 October 2010. At interview she was told that job was full-time, but was given a contract which states "You will be required to work an average of 1 day per week and all benefits will be pro-rated at one fifth of that provided to full-time members of staff". Apparently, all shop floor workers have the same contract ie nobody is full-time except senior management. In fact the vast majority of staff were on fixed term contracts to cover the Christmas period. For the 12 weeks she was there, she always worked over and above the exp0ected average hours, and the average was actually 28.75hrs per week. Every week management would draw up the rota and state the hours she was required to work, which she did.

 

She was called into the office on 9th November and told that due to closure of one of the stores, her job no longer existed and she was to go home that day as there was no work for her but they would pay her for that day - she had been put on the rota for that day. No mention of notice period.

 

Her contract states that she is not entitled to accrue holiday and I quote: "Holidays are accred as employees work. No holiday is accrued or may be taken in the first 3 months of work. The full holiday procedures are detailed in your addendum."

 

Addendum states:"Holiday is accrued after 3 months of service, hence during the first 3 months of employment no holiday can be taken. After the first 3 months of service the number days holiday that has been accrued is determined by Number of completed months X 1.6 for an employee working 40 hours per week. Where an employee works less than 40 hours per week, holiday entitlement is pro-rated ie an employee working 20 hours per week would be entitled to 10 days holiday after complete one year service, rather than 20 days."

 

Clearly the number of holiday days quoted does not include bank holidays as this does not add up to 28.

 

What exactly should she be claiming from her employer in terms of notice and holiday? We have had conflicting information from ACAS - one man said that she should work out the average hours worked per week (N = 28.75) X 5.6 /52 X 12 (number of weeks worked). Another said it would be 12.07% of the total number of hours worked and another said that they may ignore the past 12 weeks and just base it on the contract which states that the average hours expected would be 8 per week. Which would be correct? The same goes for the notice period pay? Do they base it on the average of the past 12 weeks, or just the bare minimum average (which never actually happened). Her contract does state that she is entitled to 1 week's notice but they didn't give her any - they may pay her, but may not - we don't know yet!

 

At this stage we have no idea whether they intend to pay anything. She was employed over the Christmas period, and therefore there are bank holidays to take into account - she does not expect to be paid for any of them, nor have them included in her holiday calcuation - how does this work?

 

All she wants to do is write to employer laying out what she expects them to pay her and get it right! Thank you in advance!

[honeybee13]

Hello and welcome to the forum. I'm not surprised you got conflicting advice from ACAS, seems to happen regularly.

 

What a nightmare. I'm hopeless at these calculations, but we have bright people around who understand them. Have you looked at the directgov website at all? I know they have a holiday calculator that could help you. As you say, holiday entitlement is a pro-rata 28 days including bank holidays, but I expect someone will be along later to say that bank holidays aren't treated differently from ordinary days. I'm interested to see what the 'guys' say about not accruing holiday, I thought it accrued over the course of the year. Directgov may cover that too.

 

You need to check, but I thought a week's notice was normal. Of course, they may think that the extra day they said they would pay equates to a week, if the contract says she's to work one day a week, just speculating on my part. I think I've seen that on directgov as well.

 

I hope the people who know will be along later and will be interested to see how this unravels.

 

My best, HB

[Kelloggs36]

Hi - thanks, yes I have looked at Directgov website but it doesn't cover the circumstances exactly - it covers both normal and average calculations, but we are not sure which would be right in this case as contract says average, but not specifically the number of hours she should work. It is all so confusing!

 

We understand that despite the contract stating no holiday accrued, that this is wrong in law and will be claiming it - but it is what to claim that is the issue!

[honeybee13]

I see what you mean. Please bear with us a bit longer. Most of our experts are probably at their day jobs, I expect they'll comment later.

 

My best, HB

[SarEl]

Maths isn't my forte, so I won't be the one doing the maths for you. But I can tell them how it should be calculated! Holiday accrues from day one of employment, full stop. Contracts cannot overrule the law! As ACAS should know! I am glad to see that they are back to their usual standard of advice - I had to have a little lie down to get over the shock of telling another poster that they were right about something.

 

Hoidays accrue on the basis of hours worked - this is a typical sniggly contract to try and get out of them! So you take the full time hours, and work out the precentage of a full week that she worked in each week - and that is the holiday owed for that week. For anyone else interested - that is how they accrue for zero hour contracts too. Notice pay is different though, that is based solely on contractual hours (because it is a "future payment" and you could not have guaranteed additional hours would be worked in the future, so the entitlement is only to the contractual payment). Does that make sense?

[Kelloggs36]

I think so, so she can claim only 8 hours notice payment but the 12.07% of the total hours as holiday as it is based on actual hours worked. That seems fair and makes sense. Should she put that in the letter? As she has worked a total of 345 hours over the 12 weeks, 12.07% of that would be 41.6 hours. The rate of pay was the same all the way through, so that would be 41.6 hours x £6 per hour = £246? I am assuming that the notice week is not included, or should she include the 8 hours for the notice week and add on 12.07% of that too?

[SarEl]

I won't comment on the maths - but the understanding is correct except for the notice pay - it was pay in lieu of notice, which does not accrue holiday.

[Kelloggs36]

Thank you for that - I had not counted the notice as added in my maths! I shall put this claim in writing to them.