Minimum wage and holiday entitlement

cravingsavings

Hi, Hope somebody who knows about wages and conditions can help. My wife is employed as a child care assistant and works 37 1/2 hours per week @ £5.73(minimum wage) per hour for 43 weeks a year.(no paid time off within this period) giving her an annual wage of £9239.62 this is then divided by 12 to give her 12 monthly payments of £769.97. My question is if you are on the minimum wage of £5.73 per hour is your employer allowed to hold back some of your wages each week to pay you when you have time off(holidays) or should my wife work 43 weeks receive 4 weeks paid leave(holidays) and 5 weeks unpaid (rough estimate). Hope this makes sense and thank you for any replies.

robredz

I am sure that they cannot hold back salary to pay you for holidays, and they should pay you for bank holidays. Is the deduction to give an income for the unpaid 5 weeks, or is it for the holiday weeks? I think others who know better will advise (or not) imho, but look here these may help:

http://www.adviceguide.org.uk/index/life/employment/holidays_and_holiday_pay.htm#how_much_holiday_pay_should_you_get


http://www.direct.gov.uk/en/Employment/Employees/Timeoffandholidays/DG_10034642

jazzyman01

You absolutely cannot hold money back to pay for holiday. In addition minimum wage went up to £5.80 in October for employees over the age of 21.

Mudd14

As above the NMW from 1st Ocotber increased to £5.80 so she should be recieving this. Also she should be recieving statutory bank holidays of 5.6 weeks per year. There are various different calculations to work out what she would recieve but Business link provides the best resource;

http://www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=1074414843

I would expect, (37.5 hours x 43) / 52 = 31.01 hours per week holiday

She would be entitled to 5.6 weeks @ 31.01 so 173.66 hours holiday in a year

Holiday cannot be paid in lieu of holidays for anything up to 28 days. These must be taken as clear days off.

Andy_L

If she is hourly paid rather than salaried then the NMW compliance calculation excludes holiday and thus (ignoring the £5.73/5.80 rate mistake) £9239.62 is what she should be paid to comply NMW legislation

What they are doing isn't "rolled-up" pay (which is unlawful) as she is being paid when she is off on her 9 weeks leave. This is a weakness in the way min wage and holiday entitlement legislation interact

anamenottaken

Mudd14 wrote: »

As above the NMW from 1st Ocotber increased to £5.80 so she should be recieving this. Also she should be recieving statutory paid [STRIKE]bank [/STRIKE]holidays of 5.6 weeks per year relating to the annualised hours. There are various different calculations to work out what she would recieve but Business link provides the best resource;

http://www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=1074414843

I would expect, (37.5 hours x 43) / 52 = 31.01 hours per week holiday

She would be entitled to 5.6 weeks @ 31.01 so 173.66 hours holiday in a year

[STRIKE]Holiday[/STRIKE] Payment cannot be made [STRIKE]paid [/STRIKE]in lieu of taking holidays for anything up to 5.6 weeks [STRIKE]28 days[/STRIKE]. These must be taken as clear days off.

According to Business Link at least 4 weeks must be taken (my emphasis). To be honest, I'm not sure that this is an imperative - a member of staff can decide for themselves whether they want to take the time off if the employer is willing for them to work through part, or even all, of their holiday entitlement. If this is wrong under statute, please let me know.

PasturesNew

Andy_L wrote: »

she is being paid when she is off on her 9 weeks leave. This is a weakness in the way min wage and holiday entitlement legislation interact

I don't read it as that. I read it that she works for all those hours for 43 weeks, then the next 9 weeks she isn't paid at all. Her pay is spread over the 12 months, but pay for 43 weeks only.

Andy_L

I think we're in furious agreement. AIUI she's effectivly being paid ~£4.70 an hour whilst at work & on holiday however this is legal under NMW as you don't have to count holiday for hourly paid staff

cravingsavings

Thanks for all replies. I read my wifes pay situation the same as pasturesnew ( she works for 43 weeks, then the next 9 weeks she isn't paid at all. Her pay is spread over the 12 months, but pay for 43 weeks only.) However talking to someone who was in the council wages department this is normal practice. As AndyL says she's effectivly being paid ~£4.70 an hour whilst at work & on holiday however this is legal under NMW as you don't have to count holiday for hourly paid staff. If this is legal( which seems to be the case) then it seems like a loophole that employers use to pay under the NMW to me.

kingfisherblue

I would imagine that your wife is paid pro-rata, which is common in schools and some other places of employment. Teaching assistants are paid in the same way. It is unfair, but legal.

coco1980

i used to work for the council and we were paid 39 weeks over 52, it is called pro rata, lots of people who work in childcare seem to get this