Rolled-up Holiday pay (advice please)

Confuscious

Hi people, I hope someone can help me with this.

Here is an extract from my employment contract for casual event work

"This information is required to ensure you are suitable to contract with the Company to provide security services. If you do contract with the Company to provide services you will do so as a contractor and not as an employee and the terms in this paragraph will be incorporated into each contract. You are under no obligation to offer your services or accept work offered and the Company is under no obligation to accept your offer of services or provide you with work at any time. If you do choose to work with the Company each engagement shall constitute a separate contract for services. You should inform the Company as soon as possible that you cannot work and obtain their prior approval. You will be paid on an hourly rate, and to avoid administrative difficulties the Company has already calculated the hourly rates to take account of the fact that you are entitled to four weeks paid holiday each year. For the avoidance of doubt, you will therefore not receive pay for periods when you are off on holiday. You will already have been paid 7.7% for such holiday entitlement within your hourly rate. You agree that the Company has the right to deduct from any sums due to you, any sums that you owe the Company. "

Can anyone advise if this is legal ??

It doesn't specify on my wage slip what proportion is wages and what is holiday pay

The hourly rate including holiday pay is £6.30

We also (mostly) do not get paid for working more than contracted hours, e.g. if we are contracted from 4pm to 11pm and dont get finished until, say, 11.30pm, we only get paid until 11pm as most of the time our sign-in/out sheets are preprinted with the times already inserted. When we change these, they simply change them back.

We also get charged £18 for a polo shirt (not that this has any effect on wages, but i'm in a !!!!!y mood)

I hope someone can advise on this

thanks in advance

Confuscious

LittleVoice

Those conditions are out of date in any case - eg no longer 4 weeks but 5.6 weeks, so the percentage is 12.07%

With a rate of £6.30 including holiday pay, your rate exclusive of the minimum statutory paid holiday entitlement is just over £5.62 an hour. Unless you are under 21, you are therefore not being paid the minimum wage (£5.80/hour at the moment).

Not stating what part of your pay is in respect of holiday and what is basic pay is not lawful.

SarEl

On the face of it, it appears to be legal. Because according to the terms described here you are not an employee, but self-employed, and therefore you are not entitled by law to holidays or NMW or anything much else. If you contract your services (self-employment) whatever terms you agree are yourbusiness and nobody elses. The company do appear to be confused however, in referring to holiday entitilement - as I said, as someone who is self-employed you aren't entitled to any!

Mind you, I wouldn't touch a contract with these terms with barge pole, legal or not.

Confuscious

Thanks for the quick answer LittleVoice,

Have you any suggestions on how to rectify this without getting fired

Confuscious

SarEl wrote: »

On the face of it, it appears to be legal. Because according to the terms described here you are not an employee, but self-employed, and therefore you are not entitled by law to holidays or NMW or anything much else. If you contract your services (self-employment) whatever terms you agree are yourbusiness and nobody elses. The company do appear to be confused however, in referring to holiday entitilement - as I said, as someone who is self-employed you aren't entitled to any!

Mind you, I wouldn't touch a contract with these terms with barge pole, legal or not.

Thanks SarEl,

I sort of understand what you are saying, but i dont understand being self-employed when the take National insurance and tax off me

Uncertain

Confuscious wrote: »

Thanks SarEl,

I sort of understand what you are saying, but i dont understand being self-employed when the take National insurance and tax off me

This is not uncommon. Ultimately it is HMRC who decided (for tax purposes) whether you are self employed or an employee. What you and the firm say you are in a contract has very little to do with it!

By deducting tax and NI the firm are covering their backs as they could be held liable for this if it were later judged that your were an employee or even, in some circumstances, if you failed to declare your earnings.

I have seen situations where this is the norm and the "employer" would only pay gross to people who were VAT registered or could provide a letter from an accountant each year saying that the imcome was being properly declared.

You can of course claim tax back from HMRC if you have paid too much but only you can decide if you are prepared to work in this way.

LittleVoice

The agency is confused!

The fact that they refer to "contract for services" shows you are not an employee (which would be a "contract of service") and this is the way that most agencies work. However the regulation of agencies mean that they do need to pay you after deducting tax and employee's NI and themselves pay employer's NI.

The fact that you need to get their "prior approval" if you cannot to work is somewhat odd.

Perhaps you could gently point out that there have been a number of changes in the working time regs (re amount of paid holiday) and ask them to review their rates. (That is because the "rolled up" rate of £6.30 would be £5.85 (ie above NMW) for the basic pay and, to give them the benefit of the doubt, it could be a genuine error.)

Confuscious

Thanks a million for your advice guys.


I was able to speak anonymously to the Inland Revenue today, who were very interested in my plight, (espescially as the company has 1,000+ employeses.

here's hoping I see some sort of result soon

thanks again