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Jez1987

Holiday pay entitlement disagreement based on contracted hours and not hours worked

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Hi all

 

Thanks for taking the time to look at my question.

 

As stated in the title I've requested my holiday allowance from my employer and have received a response stating my allowance so far this year is 6 hours a week as per my contracted hours. I work on average 25 - 30 hours a week shift work and have done for the entire year and previous years too. So far this year I have been paid for 544.5 hours of work

 

Here is quoted from my contract under the headline "holidays"

 

"In each holiday year you are entitled to 5.6 weeks paid holiday pro rata to your working week ( the holiday year runs from 1st April to 31st March)"

 

The rest of the information under the same heading is unrelated to my issue ( notice period, can't carry over to the next year etc)

 

I've worked for this company on and off for the last 8 years but this current contract was signed on the 11th of June 2012

 

Last year I had a similar issue trying to get holiday pay out of them and ended up getting my previous 8 weeks average for the 2 weeks I requested. This year they are using the excuse that last year they couldn't find my contract but now they have, my holiday entitlement is 16 hours based on the 6 hour contract x 5.6 weeks pro rata.

 

What advice can you give me to help me fight for my right for fair holiday pay, please provide references where you can.

 

Thanks again for looking and for your responses

 

Jez

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This may be of some assistance to you

 

http://www.acas.org.uk/holidaypay


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The SabreSheep, All information is offered on good faith and based on mine and others experiences. I am not a qualified legal professional and you should always seek legal advice if you are unsure of your position.

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You are caught in limbo here between current and probable future law. Whilst the law - increasingly being reinforced by a number of recent court judgments - says that you should be paid 'a week's pay for a week's holiday', and that this should be based on an average of hours worked over the preceding 12 weeks, this only applies to guaranteed overtime.

 

The questions therefore would be as follows:-

 

Does your contract state that although your core hours may only amount to 6 hours a week, overtime WILL be made available and you must provide availability outside of the core hours?

 

Where overtime IS offered, are you obliged to work it?

 

What would be the position if you were to decline overtime?

 

Are you paid an enhanced rate for hours worked over your contracted amount?

 

If there is a 'mutuality of obligation' - ie that the employer has agreed that more hours will be required than your core hours, and that when offered you are expected to take them, then it would most likely be the case that (even by custom and practice alone, even if not specified by contract) the overtime is considered mandatory, or guaranteed, especially if you are included in a rota without consultation. If however you are free to reject any additional hours without sanction, then the overtime would be more likely voluntary, especially where an enhance rate of pay is applicable.

 

Case law is building a situation where a failure to pay holiday pay based on guaranteed or contractual overtime is unlawful, but there have been few tests in court where the overtime is voluntary. Are you a member of a Union? Have you highlighted the question over recent case-law to your employer?

 

The main problem may be that you could end up winning the battle but losing future overtime!


Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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