Are they allowed to do this?

surreysaver

londondulwich wrote: »

To be fair to employees who work irregular hours or shifts, holiday pay is calculated by taking an average of their working hours.

The average is based on the previous 12 weeks.

e.g. If you worked 3 weeks at 30 hours, 6 weeks at 24, 2 weeks at 26 and one week at 16. your average weekly rate would be 25.16 hours.

Surely that applies to staff such as agency staff, or temporary staff - staff that in theory have zero contracted hours - they just work when required / when they want? If you have contracted hours, this is what your holiday entitlement will be based on - unless your contract takes overtime into account.

londondulwich

Employment Rights Act 1996

Employments with normal working hours

221 General

(3) Subject to section 222, if the employee’s remuneration for employment in normal working hours (whether by the hour or week or other period) does vary with the amount of work done in the period, the amount of a week’s pay is the amount of remuneration for the number of normal working hours in a week calculated at the average hourly rate of remuneration payable by the employer to the employee in respect of the period of twelve weeks ending—

(a) where the calculation date is the last day of a week, with that week, and
(b) otherwise, with the last complete week before the calculation date.

(emphasis added)

surreysaver

Define normal working hours. And what does section 222 state?

londondulwich

Normal working hours, for the original poster, are currently 15 and a half, before this week they seem to have been around 26.

For the purposes of the 1996 Act, normal working hours are the average hours taken from the previous 12 weeks.

The legislation is aimed precisely at employees who's working hours vary and who's pay varies in line with those hours.

If you doubt me and the Act itself, maybe ACAS' interpretation can help.

http://www.acas.org.uk/index.aspx?articleid=806

Look under the section titled "Workers with normal working hours." The sentence starting "Shift and rota workers".

surreysaver

"If a worker's pay does not vary with the amount of work done then a week's pay is the amount due for a week's work under the worker's contract. Pay for non contractual overtime is excluded."

Two sentences above yours...

zowoods

Surreysaver agree with you as this is how it works at my company - all benefits based on contract.

We ask staff to flex up but if regularly working above contract then would change employee's contract as only fair thing to do. this does not inc uni/school holidays.
allows businesses to flex up at busy times and drop to minimum contract when slower used quite often in retail.

lesley1960

shellsuit wrote: »

Holiday pay should be your average pay over the previous 12 weeks to the holiday.

Say you earn £100 a week for 12 weeks, then take a weeks holiday, you would be paid £100 for that week.

BUT, if you worked more hours, say 6 weeks @ £100 and 6 weeks @ £150, then your holiday pay should be £125.

Er no?

Holiday pay is at the rate agreed in your contract

londondulwich

The quote I think you are referring to does not apply to shift workers.

surreysaver

Where does the OP say they are a shift worker? Even if they are, their contract is still 16 hours per week, even if half the weeks their rota makes them do 12 hours of their contracted hours, and the other half 20 hours - it will still average 16 hours per week. Any overtime worked above that is non contractural, and therefore does not need to be taken into account.

Savvy_Sue

I would be trying to talk to ACAS.

Also, if (as it seems) the OP has been told that she won't be paid for working beyond 6 pm, but her shifts have been written down as being until 6.30 pm - well that's not on, surely?