Holiday Pay Legislation

haveibeendone

I am trying to find the relevant legislation regarding holiday pay and overtime for agency workers with no set working hours and variable rates of pay.

I think I understand the rules for normal employees who have a contract of employment stating the hours they work each week and anything over this would be classed as overtime. The employer does not have to take overtime into account for calculating holiday entitlement.

However I have no contracted hours. Shifts can be on any day including weekends and at any time. So what pay, if any, is excluded from holiday pay calculations.

The agency I work for say that any hours over 8 hours per day is overtime and not counted for holiday pay. They also say that weekends are not counted. They also say that only base day rate is used. They say that I am compensated for this because I am paid a premium rate for nights and weekends.which is £1.00 per hour for night work, £2.00 per hour on Saturdays and £4.00 per hour on Sundays.

However the TUC on thier "Work Smart" site say that.
"For workers with no normal working hours, such as casual workers a week's pay equals the average weekly pay over a 12 week period, including -overtime and overtime rates."

http://www.worksmart.org.uk/rights/am_i_entitled_to_holiday_pay_at


I have asked ACAS about this and they say that overime should be included if it is "not voluntary". I have to work until the job is finished. If I went home after 8 hours I certainly woold not get any more work. But ACAS won't confirm this in writing nor are they able to point me towards the bit of law that says this.

There are many websites offering information but none that I can find that point me towards the relevant legislation so that I can quote this to my agency and possibly to a small claims court should I decide to sue for the difference in what I am currently paid and what I would be paid under the TUC method. The difference is over £1,000 as most of my work is done at weekends and I work upto 15 hours per day.

mariefab

OK, you start with the Working Time Regulations 1998 s.16

Payment in respect of periods of leave
16. - (1) A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under regulation 13, at the rate of a week's pay in respect of each week of leave.

(2) Sections 221 to 224 of the 1996 Act shall apply for the purpose of determining the amount of a week's pay for the purposes of this regulation, subject to the modifications set out in paragraph (3).

(3) The provisions referred to in paragraph (2) shall apply -

(a) as if references to the employee were references to the worker;

(b) as if references to the employee's contract of employment were references to the worker's contract;

(c) as if the calculation date were the first day of the period of leave in question; and

(d) as if the references to sections 227 and 228 did not apply.

Then you need the Employment Rights Act 1996 s.224

224 Employments with no normal working hours

(1) This section applies where there are no normal working hours for the employee when employed under the contract of employment in force on the calculation date.

(2) The amount of a week’s pay is the amount of the employee’s average weekly remuneration in 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.

(3) In arriving at the average weekly remuneration no account shall be taken of a week in which no remuneration was payable by the employer to the employee and remuneration in earlier weeks shall be brought in so as to bring up to twelve the number of weeks of which account is taken.

haveibeendone

Thanks mariefab

I still cant see where "overtime" is specifiaclly included or excluded or even what constitutes overtime for a worker with no contracted hours.

s224(2) ERA does not exlude overtime but the agency that I work for say that as overtime is excluded for employees with contracted hours it is excluded for all and they have set the level at 8 hours per day.

As the link shows the TUC do not agree with this view but I cant find any legislation to back up the TUC. I have asked them but they will not advise on individual cases and refer you back to the union (not a member), CAB was unsure, and the Pay and Rights helpline refer you to ACAS abnd ACAS only advise individulas over the phone and lastly the Employment Agency Standards Inspectorate said they do not advise on pay related matters.

LittleVoice

Can't help with additional information to point to statute but I work for an agency where I have to write out the actual hours I work and the breaks taken (not all agency/contract workers have to do this). The hours are then totalled and separately analysed as to "standard hours" and "overtime hours". I put all my time as "standard hours" (even when I work a 10-hour day) and my WTR holiday pay is calculated on those hours.

I would expect that if I ever were able to claim "overtime hours" then the rate would be enhanced (perhaps by more than 12.07%) but would not be included in the holiday calculation.

What does your timesheet look like? Does it analyse between "standard" and "overtime"? Have a look at the written terms and conditions that the agency provided, not just what they say but what they have written.

haveibeendone

Thanks LittleVoice

Don't use time sheets any more. All workers times from all the assignments are emailed from the client to the agency. Sometimes with the aid of a clock card. I keep my own record of hours just to check. It always amazes me that they frequently get the wages wrong by an hour or two or sometimes even a whole day, always underpaid but never overpaid.

The "Contract for Services" issued to me is very limited just quoting the WTD 1998 and that holidays must be taken within the leave year. Not a sausage about how it is calculated.

PS. Would it be reasonable to infer from s224 (2) ERA that as no exlusions are made then all pay including so called overtime is included in the holiday pay calculation

Newbiesw

It really shouldn't be this difficult should it?
I'm absolutely convinced that a lot of the Rules & Regulations are made by committees of people who have absolutely no experience of what they're dealing with or what effect their legislation has on the people who have to then operate & interpret their rules.
My interpretation is that you do not get holiday on overtime.
A normal shift in your department is x hours long, if you work above x hours, you get paid overtime for those extra hours otherwise you could have a staff member and a temp working in the same department, both working 12 hours per day including overtime for 2 weeks, both are paid 120 hours for those two weeks but the Temp (who may have only just started) gets extra holiday which the staff person (who may have been there 5/10 years) doesn't.....Why???
As staff, if I chose to work my day off Saturday due to the amount of work, I would be paid a days pay overtime, my holiday entitlement would not be affected.
There may be something somewhere which states that "If overtime forms a permanent & regular part of your working pattern........."
But then try to find out how long is it before being considered permanent and how regular is regular...:mad:

Newbiesw