Accrued holiday hours when leaving an agency?

Hootie19

I am working at present via an agency, and have just been offered, and accepted, a permanent post in the office I'm placed at.

I can't find anything in the agency's handbook about this, so until I get a chance to speak directly to them and find out for sure, does anyone know if there is any statutory right to be paid the hours when I leave the agency, or can they enforce the "use it, or lose it" scenario.

I'd rather be paid for it, obviously (about a week and a half's hours accrued) to ease the transition from going from weekly to monthly pay when I take up the permanent position, plus it's really busy at work at the moment, as there are two members of staff on long term sick leave, and it would be awkward for me to take the time off.

anamenottaken

Just like leaving any job, you are entitled to be paid for the accrued paid holiday hours when you stop working for the agency. They will be issuing a P45 showing that you are no longer working for them. But remember to ask for the holiday pay (it doesn't have to be taken as holiday, you just get the cash equivalent as it were). If you don't ask, they may "forget".

Mudd14

With alot of agencies you are paid an enhanced hourly rate to include holiday pay ie rolled up holiday pay, it wouldnt suprise me if they tried this one! I would ask before you get your last pay and P45

Hammyman

Every agency I've worked for has paid it upon leaving except one until I publicly embarrassed them on an industry related forum.

I've never had rolled up holiday pay and have been working for agencies 2/3 of the last 18 years.

haveibeendone

Hootie

I have had big problems with holiday pay from several agencies and in my view a lot of them abuse the law and do not pay the correct amount and often don't pay anything until forced to.

I have since looked up on the internet the "proper" position. Initially pointed in the right direction by mariefab on this forum in July.

The Working Time Regulations (1998) state in section 14 para 2
http://www.legislation.gov.uk/uksi/1998/1833/regulation/14/made

(2) Where the proportion of leave taken by the worker is less than the proportion of the leave year which has expired, his employer shall make him a payment in lieu of leave in accordance with paragraph (3).

I think the use of the phrase "shall make him a payment" puts the onus onto the agency to pay without asking but in any case it is clear from s14 that you have the right to any accrued (untaken) holidays on termination.

Please post again if you are unsure how much holiday pay you are owed as many agencies do not pay the correct amount.

As has been said on this forum "rolled up" holiday pay is illegal

Mudd14

haveibeendone wrote: »

As has been said on this forum "rolled up" holiday pay is illegal

Whilst most of your post I agree with part I do not. There is no law that states rolled up holiday pay is illegal. There are a number of laws that state that stautory holiday can not be paid in lieu and the like but nothing says rolled up holiday pay is illegal.

Following a European Court of Justice decision on 16 March 2006 it was decided that rolled up holiday pay is considered unlawful and payment for annual leave should be paid when taken. They also went on to say that employers should make preperations to chnage the method they pay holiday pay but any payments in the meantime should be clear and transparent. Therfore if the agency were to clearly mark on the workers payslip a rate for basic wages and a rate for holiday this would more than likely meet the criteria for being transparent.

Please also do not mix up the works illegal and unlawful. Illegal would refer to a criminal act which could obviously end up in a prison sentance, an unlawful act on the overhand wouldnt.

Hootie19

Thank you all for your responses. I asked, because in my last job, which was with a local council, cutting a very long story short, I found out 12 days before my contract expired and I was due to leave, that I had to take the 13 days leave I had accumulated, or lose them, as they didn't pay for any outstanding leave. I left that day and used my holiday time up!!

I have spoken to my agency this morning, and they have confirmed that I can be paid for any accured leave not taken when I leave the agency's employment.

Thank you again for your replies.

haveibeendone

Fron Dept Business innovation & Skills
Following an ECJ judgment on 16 March 2006 and more recent judgments in UK courts, rolled-up holiday pay (RHP) is considered unlawful and payment for statutory annual leave should be made at the time when leave is taken.

From The Recruiter
The court’s ruling
The court said that arrangements of this kind were illegal. In effect, the ruling means that it is illegal to provide a ‘global’ figure for a worker’s pay, which includes an element for holiday pay (ie “rolled-up” holiday pay), unless the holiday pay “transparently” and “comprehensibly” relates to a specific holiday.
In the case mentioned above, it was not enough that the agreement did provide for holidays at times to be arranged by the worker.
Holiday pay should be tied to the holiday.
However, the court also said that if there is an agreement (technically illegal), a sum expressed to be holiday pay could be offset against a claim for breach of this law.
This leaves employers in the position of being able to breach the law without much, if any, financial penalty.

One says illegal one says unlawful.

As I understand it the court rulling in 2006 was to give employers an oportunity to change thier working practices and after 4 years they should have done that.

I accept the difference between unlawful and illegal but to my mind if some one breaches a statutory duty then they are acting illegally. Unfortunately the remedies in law for wayward employers are not harsh enough.

However I think that we could agree that rolled up holiday pay is suspect.

Mudd14

Yes I agree that it probabily shouldnt be used. Alot of things shouldnt but they are both for employees and employers