Holiday Pay

[jimbocw]

I am in dispute with my employer regarding the amount paid for annual leave, I work a fixed 4 x 12hour shift each week, 48 hours in total. My hand book states that I am entitled to 28 days leave a year. My employer is paying me 9.6 hours per holiday and I believe I should be paid 12 hours per holiday, based on the employments rights act 1996 sections 221 - 224 can anyone advise me on this.

[Emmzzi]

your employer is correct. If you worked a 5 day week you would be entitled to 28 days x 12 hours.

 

As you work a 4 day week you are entitled to 12 hours x 4/5 = 9.6 hours for 28 days

 

Or alternatively 28 x 4/5 = 22.4 days at 12 hours; it amounts to the same.

[jimbocw]

I understand the 22.4 figure but this would be based on the statutory minimum but my hand book does not state only statutory minimum, also my point is that according to he employments rights act 1996 sections 221 - 224 my understanding is that holiday pay must be paid at the same rate of pay as work pay, 221 (2) if the employee’s remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a week’s pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week. To me this means my employer must pay me either 48 for a week's holiday as this is a week's pay or 12 hours a day because this would be a day's pay and my employer is only paying me 9.6 hours a day or 38.4 hours per week.

[Emmzzi]

All of that would be true if you worked a 5 day week.

 

You don't. So you get 4/5ths.

[jimbocw]

Thanks for the reply, so are you saying that this only applies to a 5 day week work pattern.

[Emmzzi]

I'm saying you have to pro rata it for a 4 day week, yes.

 

In effect you get 5.6 weeks holiday, but for you that is 5.6 x a 4 day week = 22.4 days - or 28 days at the lower hourly rate, works out the same.

[CrappoMan]

All of that would be true if you worked a 5 day week.

 

You don't. So you get 4/5ths.

 

Should it not be pro-rated on his hours of work ?

 

A part-timer who works 2x 4hr shifts on different days doesn't get 2/5 of the statutory holidays. They get 8/40 of the statutory. Or rather they get 2x 4hr shifts paid when they have a week off. That is not the same as what you are saying.

[Emmzzi]

Should it not be pro-rated on his hours of work ?

 

A part-timer who works 2x 4hr shifts on different days doesn't get 2/5 of the statutory holidays. They get 8/40 of the statutory. Or rather they get 2x 4hr shifts paid when they have a week off. That is not the same as what you are saying.

 

 

Work it out on the actual and see if you get a different answer to what his HR are saying? There are multiple ways of getting to the same end answer!

[jimbocw]

I believe my employer cannot pay me 9.6 hrs according to ERA 1996 and this could only be paid at 22.4 days at 12 hours.

[Emmzzi]

I believe my employer cannot pay me 9.6 hrs according to ERA 1996 and this could only be paid at 22.4 days at 12 hours.

 

28 days x 9.6 hours = 268.6 hours

22.4 days x 12 hours = 268.6 hours

 

Entering pedantic territory there, I think.

[jimbocw]

Crampon I agree with your argument, as my earlier post said paying 9.6 per holiday = 38.4 hours weekly and I work 48 hours weekly.

[jimbocw]

Emmzzi, your points assume statutory minimum entitlement

my first post stated 28 days leave a year and my handbook does not state statutory holiday entitlement therefore the specifics on how daily or weekly pay is calculated is different from the points you make.

[ericsbrother]

assume a normal week is 5 days of length x you work 4/5 of x so when you take your annual leave you get 5 weeks of 4 days/week. If you want your employer to look at it your way he will tell you that the day a week you dont work is your holiday and you owe 26 days pay to them!

I work 1 day a week so my paid holiday is 5 days a year which is 5 working weeks pro rata. I obviously take a pay uplift instead.

[CrappoMan]

But the 5 days paid holiday you get will be at your normal daily rate for the 1 day a week you do work. So you get 5 FULL weeks pay. The OP isn't getting 5 weeks worth of pay, he is only getting 4.

[Emmzzi]

What is the exact wording of your contract and the 28 days noted in the handbook? no mention of the phrase "pro rata" anywhere at all? Nothing about people not doing a 5 day week?

 

Would you prefer they put you on a 5 day week?

[jimbocw]

I don't seem to have made my point clear, if we forget the statutory entitlement and cover the ERA 1996 it clearly states that leave is based on weekly pay and my weekly pay is 48 hours,because my employee handbook makes no mention of statutory minimum leave entitlement but simply states I am entitled to 28 days a year I believe this can only be paid at either 12 hours daily or 48 hours weekly to comply with The Employment Rights Act 1996 section 221- 224

[Emmzzi]

So, what is the exact wording in your handbook and contract? Exactly, word for word please?

[jimbocw]

So, what is the exact wording in your handbook and contract? Exactly, word for word please?

 

Im not able to give an exact copy just now because I am not home. I can paraphrase from April 2009 you will be entitled to 28 days a year accruing at 2.33 days a month this will be paid based on your fixed weekly hours. There is no mention of a 5 day week or minimum statutory entitlement, I will post word for word tomorrow.

[jimbocw]

I forgot to say there is no mention of pro rata either.

[Emmzzi]

ok, please post back when you do have it to hand.

[jimbocw]

Emmzzi, here is a word for word copy of my employee handbook details regarding holidays. Holidays The holiday year runs from 1 January to 31 December.

 

From 1 st April 2009 your annual leave entitlement will increase to 28 days and your entitlement will accrue at 2.33 days per month.

 

 

Holiday pay will be calculated with reference to average pay and average hours worked over the previous 12 weeks. Where your normal hours are fixed, your holiday pay will be based on your normal weekly hours. Where your normal hours are variable, the average number of hours worked (up to 11.2 hours per day or 56 hours per week) will be multiplied by the average rate of pay over that period. For part timers holiday pay will accrue at 2.33 days per month on the basis of the average daily hours worked over the previous 12 week period. You may not carry any unused entitlement forward to a subsequent holiday year. All holiday accrued and not taken by 31st December will be forfeited.

[Emmzzi]

and your average daily hours are 12 x 4/5 = 9.6 for a normal work week

 

your average/normal weekly hours include 3 days off

 

Your average hours worked per week = 9.6 x 5 or 12 x 4

 

Your employer is being totally legit. I wuld drop your dispute, it is not going anywhere.

[jimbocw]

Thanks for the input.

[honeybee13]

jimbo, working out holidays when you don't work 5 days a week does my head in, you have my sympathies. My OH keeps trying to explain his calculations to me.

 

Emmzzi, would things be different on the holiday front if jimbo worked the same number of hours spread over 5 days?

 

HB

[ericsbrother]

if the hours were spread over 5 days he would be entitled to the 28 (9.6 hour) days off, paid at the rate of whatever the hourly rate is. So, the holiday pay will be the same over the full year.