contract vs. standard practice (holiday issues)

[furiosa]

Hello,

 

I'm after some insight into employment law please, as I'm at a total loss.

 

I was employed last year on a 24 hour a week contract. (I've now worked about 11 months, so I'm well aware I'm under the two years needed to avoid being fired for any reason for making a fuss).

 

However, every week since I commenced my employment I've regularly worked between 30 and 65 hours a week.

 

I'm also paid weekly.

 

I asked about holiday entitlement yesterday as I've already had two weeks off (10 days) but was only paid 4 of them as holiday. I was told that because my contract is for 24 hours a week my holiday is only pro rata.

 

Taking in to account 45 payslips I've now had, the mean average working hours is 45hrs p/w. Surely I should be entitled to more than my contracted hours of holiday entitlement, or am I just ****ing in the wind?

[Emmzzi]

this may help?

 

https://www.gov.uk/holiday-entitlement-rights/holiday-pay-the-basics

[furiosa]

Thanks, but it doesn't really answer my question. I KNOW what my 24hr a week contract entitles me to, but I work up to 65hr a week, EVERY week since I started! Is there no moral obligation to pay me holiday based on my hours worked over a year, or are they simply within their rights to pretend I only work 24hrs, and if I don't like it I can just f off and be a wage slave somewhere else, etc?

[Emmzzi]

http://www.acas.org.uk/index.aspx?articleid=4109

 

Guaranteed and normal non-guaranteed overtime should be considered when calculating a worker's statutory holiday pay entitlement but there is currently no definitive case law that suggests voluntary overtime needs to be taken into account.

 

So if the contract doesnt say you HAVE to do the overtime, it looks like there needs to be a test case.

[honeybee13]

Hello there.

 

Emmzzi's link says they're meant to base your holiday on hours worked over the last 3 months.

 

Are you saying that they don't acknowledge the hours you've actually worked?

 

HB

[furiosa]

Hi, exactly, I spoke with the boss today and he said for a full time contract worker it's 20 days holiday a year plus bank holidays, but because my contract is 24 hours a week (ie part time) I only get a pro rata holiday entitlement.

 

Apologies if I come off a bit aggro but I'm really irritated right now.

 

Appreciate any help offered. I'm just annoyed that with under 2 years service the law says I can basically go whistle if I don't like it!

[furiosa]

I'd love to be the test case! If any of you good people want to have a whip-round for my legal fees I promise you I won't disappoint!!! Ha!

Hopefully, fair play, honour, integrity still mean something in the workplace so it won't have to come to that. Or am I just naive despite being too old school for my own good?

[honeybee13]

Hello again. I understand you're angry, I would be.

 

Hopefully Emmzzi will be back, but you could also consider ringing ACAS to see what they think. The advice can be a bit hit and miss so it would be good to post what they say so it can be reviewed here.

 

http://www.acas.org.uk/index.aspx?articleid=2042

 

HB

[furiosa]

ok, thanks for that. I'll give them a call tomorrow and let you know what they say.

Zoe x

[furiosa]

Just to update the thread as promised, I called ACAS and they said if I've worked 60 hrs a week for the last 6 months, then that is my new contract and my holiday entitlement should be based on that.

I talked to my boss with this new knowledge and he said - (to quote) "Congratulations, you are correct, but bad luck you can either **** off or accept my conditions".

 

Great. I'm now correct and without a job.

[CrappoMan]

If you have evidence of that, you may be able to take them to ET for unfair dismissal for "trying to assert a statutory right".

[ericsbrother]

the problem is what is considered regualr overtime. I have a part time jon on a zero hours contract so my holiday pay is based on the hours per year I actually work, rather than on a proportion of a fixed time. essentially add 12.5% to your pay over the year and that is what they should be paying you in total as holiday pay.

[steampowered]

If you were dismissed because you asked for holiday pay which you are due under the Working Time Regulations, that would be a dismissal for exercise of a statutory right. That would mean you could sue your employer for unfair dismissal even though you have less than two years' service - that type of dismissal is not subject to the 2 years employment qualifying period.

 

Of course, there is something to be said for having a job rather than suing your employer.

[ericsbrother]

Your employer wont change their attitude unless someone does something to adjust it. What hurts them the most is losing money and it will cost them plenty of that to defend a claim at an ET and if they have insurance for such things the insurer will send a lawyer along to deal with the matter but it will cost them an absolute fortune in premiums afterwards so they wont be making the same mistake twice.

If you do fancy the ET route you couls also demand your job back and if they dont agree then that will be even more money to compensate you until you find something else.

[SabreSheep]

Although just to advise, a claim on loss of potential earnings in the even of not getting your job back will be limited. You will be expected to mitigate any losses by seeking employment as soon as possible.