Unpaid Holiday Entitlements

[Dr Hunter]

Hello,

 

This will be the first of two threads I create regarding issues with my employer. I have worked on a contracted back-shift for the last three years and receive a premium rate of time + 1/4.

 

We do not receive the premium (+1/4) when we take holidays (even though we are legally entitled to it) and the company is in the process of (after getting union lawyers involved) of correcting the mistake.

 

The problem lies with the fact that (although many complaints had been made) the lawyers were not involved until Christmas last year and the Company are now discussing whether to back date our deducted payments for three months or since Christmas.

 

Surely they will have to backdate the underpaid wages right back to when each employee started as this has been an unlawful deduction of wages??

 

Could anyone let me know what our rights are on how far back we can claim and the procedures to do so?

 

Thanks in advance for any help given

DH

[mariefab]

It depends....

 

On what date did they start paying the premium (+1/4) for holidays?

[Dr Hunter]

@mariefab, it still has not started being paid. The stage we are at just now is : the company lawyers have offered a settlement to everyone to compensate for the unpaid holiday pay over claimed Christmas period.

This is seen as stage one, with stage two being the legally correct money paid in the future. Stage three will be backdated payments.

Thanks for your reply.

[Dr Hunter]

I maybe should not have used the word "premium", our wages are set at this rare in our contract for working this shift. The working time directive sets out the following for employees in our situation:

 

"Rates of pay

The rate of holiday pay is generally the normal rate for the worker. So for those workers who are paid monthly, their annual salary is divided into 12 equal payments and when they take holiday it has no effect on their pay slip.

 

You only have to work out a special payment where your workers have varying pay rates, such as piece work. In those cases, the holiday pay will be equal to the average rate over the 12 weeks before the holiday."

 

I have read from many official sources that where an employee is contracted to work certain hours at a certain rate they are entitled to the same rate (or averaged) when on holiday.

[mariefab]

The solicitors are cleverly seeking to break the chain of your potential claim with stage 1.

If you agree to it I wouldn't hold out much hope of stage 3 ever being complied with.

 

You are entitled to claim for the whole of the period of the unlawful deduction

[Dr Hunter]

Thanks for the info mariefab, yep, I am pretty sure there are tactics involved but I won't be signing away any potential backdated claims for the sake of a weeks underpayment.

Regarding the claimable period, for me and most on my shift we are looking at around 3 to 6 years but for some on the nightshift it could be as much as 20 years. Do you have any links to references on how far back claims can be made? We are continually told either one year (due to a case where someone was on long term sickness leave so not applicable) or 6 years which rings bells with the whole bank charges 6 years previous versus 6 years from date made aware of problem debate.

Sorry for the long sentences/poor phrasing, I am typing this on my phone.

Thanks again for your help

[mariefab]

I don't know of any authority limiting the number of years you can claim back unauthorised deductions. Although, in this case, I would suggest that since your claim is for payments due under the Working Time Regulations (WTR) you can only go back as far as 1998.

 

Right, the starting point for your claim is section 16 of the WTR.

 

http://www.legislation.gov.uk/uksi/1998/1833/regulation/16/made

 

As you can see 16(1) says that you are entitled to a week's pay for a week's leave and 16(2) directs you to the Employment Rights Act 1996 (ERA) to determine how much a week's pay amounts to.

The intention is that employees should receive around the same amount of pay as usual when they take their leave. Otherwise they would be disencouraged, or perhaps couldn't afford, to take their leave entitlement.

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At your workplace the Day shift get the basic hourly rate (straight time) and you get basic + 1/4. So, to keep it easy let's say that the basic rate (br) is £10 per hour.

 

If you've just been paid 32 hours br for a week's holiday, then there was an unauthorised deduction of £80 (32 x 1/4hr =8hrs pay) each time.

 

If, however, you were paid 37 hours br for a week's holiday, the deduction was £30 because of 16(5).

-----

So, now we go to the Protection of Wages section of the ERA.

 

http://www.legislation.gov.uk/ukpga/1996/18/part/II

 

First we need to establish that the payment you are seeking is covered, and Yes there it is in s.27(1)(a) 'holiday pay or other emolument'.

 

Then we go to s.13(3) to show that the amount you received was less than that properly payable and therefore there was an unauthorised deduction.

 

Finally s.23(3) provides that you can complain to an Employment Tribunal about a series of unauthorised deductions within 3 months of the date of the last deduction.

 

So, as long as you have received holiday pay (underpaid) within the last 3 months you can claim back all the previous deductions.

-----

The solicitors must be fully aware of this. The Stringer case involved in establishing it went from a Tribunal - EAT - Court of Appeal - European court - House of Lords. Any of you who agree to the stage 1 they are proposing or fail to submit an Employment Tribunal claim in 3 months less 1 day from the date that you received your last holiday pay will have no grounds to recover any previous deductions.

 

I would expect that your employer will have been advised to pay holiday pay correctly from now on (regardless of the promise that this will only happen at stage 2) and to get as many people as possible to sign up to stage 1 (thus ending their right to claim) while dragging talks out with the rest to get them past the 'within 3 months' date. After which they can safely scrap stage 3.

The only way to avoid this trap is to submit a claim in time.

[Dr Hunter]

Mariefab you are a star, I can't thank you enough for taking the time to write such a useful and informative post.

I can't see why our union are not all over this, I went over the info you have given me with our rep today (who is a member of the site - so hello if your reading this) and was told the following:

-the reason for submitting a claim for the Christmas period (rather than the whole time) was to keep things simple to get the ball rolling???????

-Background: one employee had to act independently (making him potentially unpopular with management) by submitting a claim which the rest would then follow rather than the union acting on behalf of the whole shift. The reason for this is because the union would have had to put the potential action to a vote (involving all shifts most of which are unaffected and have nothing to gain) which may have lost.

-The area union representative (a paid position) is keen to keep things as simple as possible.

All of this reeks as far as I am concerned, I have to read up on individuals rights within the union. Surely if the company is making illegal deductions to even a single employee (let alone two shifts - night & back) the union should act without the need for entire workforce agreement??

Also, what is the point in having a "union" if a employee has to act independently (by submitting a claim) thereby singling himself out?

I would have thought it was in the area union guy's job description to not "keep things simple" and to get his hands dirty and fight for the best possible outcome regardless of the odds of success (I also refer to a lack of willingness to fight for the "custom and practise" case on my other thread). We had already lost anything there was to lose so anything gained is a plus.

Thanks again for all your help

[mariefab]

A union is it's members.

You appear to suggest that the members would not have voted in sufficient numbers to enable the union to act on their behalf.

Without the support of his members your union reps hands are tied.