Zero hour contract and holiday/sick pay

[reneroo77]

Hi there, I have worked since November on what I believe to be a zero hour contract.

 

My job is waitressing at a restaurant on an as and when basis, what ever is mutually convenient for both of us. I have never received a contract of employment or any statement setting out work and pay.

I have recently had to have 3 weeks off following an operation and have received no pay, as a single mother I am really struggling to survive on just my tax credits and child benefit alone.

I don't think that I will be entitled to sick pay as most weeks I havent earnt the LEL, but as far as I believe I should be entitled to a pro-rated amount of holiday pay, based on the last 12 weeks earnings.

 

I have asked my manager as he has basically said as i'm part time i'm not entitled to anything.

 

I have asked for a contract of employment and and copies of all my payslips since I started and am waiting for a response.

 

Am I right in thinking that I am entitled to holiday pay or am I barking up the wrong tree?

[renegadeimp]

Your employer is wrong. You are entitled to holidays. How many you get depends on your hours worked.

[reneroo77]

Thankyou for your reply renegedeimp, just as I thought then. I am still waiting for a response to my call, text and email regarding my documents. So frustrating.

[renegadeimp]

Send them a written letter and send by recorded delivery. Make sure to track receipt. Give them 7-14 days ( your choice) to reply.

[reneroo77]

Ok well I ended up having to leave as my employer has only been giving me between 4 and 5 hours per week and as a single parent I just can not afford that. I still havent received my SSP1 form, he says it has been completed, ive sent him a message asking me to post it.

I have emailed my boss asking for my SSP1 form, payslips and notification of when I will receive holiday pay. I haven't had a repsonse. Ive also text him, to no avail.

I'm really at a loss as to what to do next, I don't want to make things difficult, just get what i'm entitled to.

Should I send a recorded letter and if so how should I word it, or should I just put in for a tribunal claim for witheld wages.

Do I need to see a solicitor or can I do this myself.

So annoyed as I am taking my children away for a few days and really could do with this money....

[Sidewinder]

No need for a solicitor. Calculate all of the hours that you have worked from Day 1 and calculate the holiday due to you.

 

Statutory holiday entitlement amounts to 12.07% of each hour worked. Come up with a figure and multiply by your hourly rate. Take that amount and send a Letter before Action to the employer advising that despite several requests, you are still owed holiday pay for the time worked. Give them 2 weeks to resolve the issue or you will be forced to make a claim to an Employment Tribunal.

 

Something along the lines of:-

 

[DATE]

Letter Before Action

 

Dear Sir,

 

Further to my recent employment with [NAME OF COMPANY] and despite several attempts to resolve the matter informally, I am still awaiting payment of accrued holiday. I have calculated this to be [£AMOUNT] in line with the Statutory entitlement to paid holiday.

 

I now require payment of the outstanding amount to be made within 14 days of the date of this letter otherwise I will be forced to take the matter to an Employment Tribunal as a claim for Unlawful Deduction from Wages contrary to Section 13 of the Employment Rights Act 1996.

 

I also require all outstanding payslips to be sent to me as previously requested, together with a copy of the SSP1 form that I asked you to provide.

 

Yours Faithfully

[reneroo77]

Thankyou Sidewinder. My issue is that I need the payslips to work out how much holiday i've accrued.

On a seperate note, I have also noticed by looking at what payslips I do have, that any tips that were paid by credit card, were supposed to be processed through payroll, I have not received any tips through the payroll since I started. How would I question this with them?

[reneroo77]

Bit of an update and also more advice needed if possible please.

 

After many emails sent to my previous employer and only after me after sending them the recommended letter before action, I finally received a response from my employer. They have paid me 15 hours holiday pay, and are pretty much refusing to send me copy payslips so I can't check if thats correct or not. To be honest I would be happy leaving it at that as it would probably only be give or take another £50 or so!!

I have queried the tips that were paid through credit and debit card that i have never received in the 6 months i was there and have basically just been fobbed off with the excuse that they are looking into how that works and most of it gets eaten up in taxes anyway?? I asked for a copy of my contract of employment (which I know i was never given)and told that due to my query they now realise it was never issued and they have apologised and said they will get this sorted for the staff still there.

My issue is, if i have no contract of employment it doesnt help me get to the bottom of the tips query, its not the actual amount of money that bothers me here as it will probably only total a couple of hundred pounds, however could i bring an employment claim for withholding pay on this. I want to take it further as i'm am so hacked off at there attitude towards me throughout my employment, and the way i was treated when i was off sick, they sent me back my SSP1 form also but never completed it so I can't even make a claim for SSP now.

Do you think its worth taking this to an employment tribunal ?

[renegadeimp]

If tips geat eaten by taxes, then they would be a statutory part of your pay.

[reneroo77]

If tips geat eaten by taxes, then they would be a statutory part of your pay.

 

Sorry I don't understand what that means I'm thick sorry lol xx

[renegadeimp]

If you get tips, which are then taken by your employer and taxed, then they are considered part of your normal pay. Tips in general are a gift from the customer to you for great service and therefore are not normally taxed.

[Sidewinder]

Completely agree, but question the tax implications - if you were paid the money directly by the customer then you should declare those amounts as earnings to HMRC and they would be taxed as income. if the employer claims that they are eaten up mainly by tax, then how has the tax been accounted for? The employer would have to record them as taxable earnings for each staff member, so has he? I doubt it.

 

Personally I think that would probably be a wasps nest not worthy of poking a stick into. Chances are that any tips have been pocketed by the employer as income on which the business has paid tax, but you would have a hell of a job to get to the bottom of how and then an even greater task in trying to get the tips shared out. And you would then have to pay tax on them!

[renegadeimp]

To be honest, reading through the thread again, it seems the employer is pocketing the tips for themselves. The tax thing, as sidewinder said, is a very very tricky aspect. You may well have to declare it yourself and pay tax on it, or the tips COULD be seen as a gift. It's really not worth investigating in too much detail, as you may be liable for back taxes.

[reneroo77]

Do I have a right with respect to tips to ask them to prove to me how it is processed bearing in mind that I was never given a contract of employment, also am I correct in thinking that I cannot take them to an employment tribunal on the basis alone that I was never given a contract of employment?

[becky2585]

You can, but there's no compensation unless you have another successful substantive claim so there's probably little point.

[labrat]

Please wait until site team see above

[honeybee13]

Thank you, labrat. Post removed while this is checked.

[goodatresearch]

Your also entitled to a P45 from every employer despite being temporary, zero hours etc. I personally never provide a tip by credit/debit card as im not convinced it actually gets to the employees. Surely if the company is pocketing tips this is fradulent and probably theft? It should be noted that tips are taxable as earnings within Section 62 ITEPA 2003 and therefore if you have not received any this will be evident on any payslips that you have retained which by law should be itemised. And yes you are entitled to pro rata holiday pay.

[labrat]

Ignore reported post removed thanks site team

Edited July 5, 2013 by labrat