Holiday Question

[joemaries]

Hi I am posting on behalf of my girlfriend who works for a supermarket. She was employed in April 2009 on an 8 hour a week contract while at university. She finished university in 2010 and couldn't find a job so at the moment she has stayed where she is. She did ask for a full time contract but was refused on the basis that they don't offer them anymore to cut benefit cost.

 

Since she has finished her degree she has worked on average about 30 hours a week and even more than that in the last 3 months. We want to take a holiday but are unsure if we can afford it as my girlfriend is convinced she will only get paid for 8 hours if she has a week off. I on the otherhand am convinced this is wrong and think it will be based on the last 12 weeks work.

 

Her manager isn't sure as he doesn't have to deal with hr issues. I've read the gov't website on this and can't seem to ascertain an answer. Anybody any answers? Many thanks in advance for your help.

 

Joe

[postggj]

How long has she been doing the 30 hours a week

[joemaries]

Since June last year and probably averages over 30 hours a week in the last 12 weeks

[postggj]

Well if its been over a year then i would imagine custom and practice icks in on the contract of employment and you will be entitled to holiday pay on 30 hours

 

wait for more replies though as i cant confirm

[Nystagmite]

Have you or her contacted ACAS?

[joemaries]

No not as yet

[joemaries]

On the back of what postggj has said, can my girlfriend now demand that the terms of her contract be renewed as a full time contract is 39 hours but if she can get a part time contract with a minimum of 30 hours it means we will have a bit more guaranteed income instead of the slight worry every month that she will have enough hours to pay her bills.

 

Many thanks for your comments so far

 

Joe

[Sidewinder]

Custom and Practice is a very hit and miss concept as it relies (at least in this case) not only on how many hours have been worked and over what period, but also on the understanding of the nature of the extra hours. If, for example, the hours are all shown as a single entity - ie Total Hours Worked = 30 that is one thing, but the argument for C&P to apply is weakened if the wageslips make it clear that the additional hours are 'Overtime'.

 

There is also the matter of 'mutuality' in terms of whether the employer now EXPECTS those hours to be worked and what the position would be if your GF was to refuse. Are the hours now allocated without request or reference to whether she is willing to do them, or is there a conversation each week whereby the employer asks whether she is free to work certain hours?

 

There is no right to demand a full time contract unfortunately. Whilst a carefully constructed argument might cause the employer to roll over on the holiday issue, it might also cause them to swiftly curtail the extra hours which are currently being worked, or at least formalise the understanding on which they are being worked. Even if you can make a conclusive argument for C&P to apply, if the employer is adamant that they cannot or will not issue a new full time contract, they may be minded to give notice that they will revert the working hours to only 8 a week.

 

I am all for being able to assert legal rights, but the employer may inevitably find a way to make sure that they don't set a dangerous precedent!

[Atlas01]

the hols are pretty easy, google the employment rights act and see s30

 

as far as contract i would ask but not expect anything back, a large supermarket will do everything in it's power to stop a precedence of this type. In addition by arguing there are no normal working hours (era s30) it does weaken the contract side as you would need pretty much the exact same hours EVERY week to show consistency in working hours meaning the contract had changed through C&P

[postggj]

I agree

 

if the op can show working a minimum 30 hours a week contentious for the last 12 months then custom and practice may well kick in

 

be it classed as overtime or not

 

but

 

needs confirmation though

[joemaries]

Hi, thanks for all your replies, from what I can gather she would be on pretty shaky ground for the contract which is not so bad as I just thought I'd ask. She has a good working relationship with her manager and he does give her all the spare hours he can. He does give her 4/5 shifts a week without a conversation on a weekly basis although there have been weeks where she has only had 2 shifts and obtained her hours by covering other peoples shifts. As sidewinder said: any hours that she does over 8 on her payslip are down as overtime so I guess that avenue is shut. This is not so bad as we would rather see if she was entitled to more holiday pay which from what I can gather she can according to what atlas01 was referring to.