Agency workers holiday pay. Feeling conned!!!!

swingaloo

A friends daughter works for the same agency her mum and I work for. I have been employed through them for 18 months, friend 12 months and her daughter 6 months. 3 months ago the agency lost the contract at our depot and another agency took over. At the time we were told that nothing would change for us other than the name on the uniform. We were asked to sign new contracts and given a handbook.

Since the changeover I have not had a days holiday but in the past when I have taken a days hol thrugh the other agencyI have been paid 7.5 hours at £5.83. We are on the minimum wage.

2 weeks ago friends daughter took 2 days holiday and was paid the equivalent of £18 per day. She queried this with the wages dept and was told that the payment was correct. It has since come to light that other people have had the same problem, it seems that everyones holiday pay is at a different rate.

The way they have explained it is that they take an average of your weekly wage over the previous 12 weeks and pay you a 5th of that average for each day you take as holiday. They said that if you worked full weeks every week of the 12 then you would get a 7.5 hours at £5.83. The thing is that no one gets a full week almost ever. They have so many staff on the books that the work is shared out and you are really lucky if you do get in every day of the week.

Now, in the handbook it states-
You are entitled to 5.6 weeks paid holiday per full holiday year. You accrue holiday on all standard hours (not overtime hours) worked during the year.
This means that you accrue just over 12 hours of holiday for every 100 standard hours worked. Each day of holiday taken will be paid at and use 8 hours of your holiday entitlement.
Holiday is paid at a rate calculated as an average of the payrate for the standard hours worked in the preceeding 12 weeks.

So as I read that it means that you will almost never be able to get full holiday pay as if you were in every day you would get your 100 hours in just over 3 weeks but when you are on 2, 3 or 4 days its going to take a lot longer. So you could work 3 or 4 full weeks but then unless you took your holiday within the next 8 week period you would lose out if your hours were reduced. Im also unsure about the fairness of taking 8 hours holiday from your entitelment when you have a day off as we only get paid for 7.5 hours when in work.

Is it just me or does it seem unfair to others. Id be interested in opinions please.

liney

http://www.businesslink.gov.uk/bdotg/action/detail?itemId=1074414877&type=RESOURCES

The agency are calculating her holidays correctly. She is a temp on a zero hours contract so they are running an accural system, as explained in the above link under 'Workers with no normal working hours'.

swingaloo

Thank you for the reply Liney.

I understand what you say and have read the link. I think the realy annoying part is that as I said the agency were taken over by a new agency a few months ago and we were all told nothing in our terms would change. As I said before the old agency always paid us 7.5 hrs for every day taken as holiday once we had accrued it.

Im also not sure how this rule fits in with this from the handbook

This means that you accrue just over 12 hours of holiday for every 100 standard hours worked. Each day of holiday taken will be paid at and use 8 hours of your holiday entitlement.

getmore4less

They may be doing it wrong and stitching you up either due to incompitance or more likely a deliberate attempt to interprate the rules in their favour.


IIRC(and I need to check if no one confirms) the average is to work out the hourly rate.

The holiday hours acrue on contract/hours worked.

They should pay you on the average hourly rate for the number of hours taken as holiday.

What is important is how many hours they are using for the holiday and what rate they are paying this(it cannot be below min wage).

This looks like a TUPE transfer

One important thing to establish is what holiday was carried over and if there is any change in holiday year.

Another is the contract and what constitutes continuity of employment for future redundancy.

getmore4less

For a min wages contract how can the new company have got the contract, there is not a lot of room to cut costs

Go back to the people you are realy working for and see if they have done proper due diligence on this contract change they probably failed to check the people were getting paid properly(not that they care).

What happens when people start leaving etc. (if they do)

anamenottaken

They are correct in saying you accrue just over 12 hours for every 100 (standard rate) hours you work. It would actually be 12.07 hours (12 hours 4.2 minutes).

If you are all receiving the same standard rate of pay, then the difference in the rate paid for holidays may be that not enough holiday hours have actually been earned because of the difference in the actual number of hours worked by each of you since the beginning of your individual holiday years. You holiday years will be running from the start of your first assignment.

Though they say they will pay holiday as being 8 hours, if (for the two days holiday), she had not accrued 16 hours paid holiday entitlement then she could take the time off but only the hours accrued would be paid and the rest would be unpaid. Has your friend's daughter taken other paid holiday in the last six months?

It would also make a difference if you had had a change in the rate of your standard pay during the past 12 weeks.

A reduction (or increase) in the number of hours worked, would not make a difference to the amount of the hourly pay - unless the rate of pay had also changed.

Whether she has been paid correctly or not would require you to work out what hours were worked from the start of her work for the agency and the rate of pay for each hour - and you need confirmation that her (and your) holiday year is still running from the first assignment with the original agency, not since the change of agency.

The 12-week averaging is only to work out the rate of pay. The amount of hours accrued is not lost if not taken within those 12 weeks.

Looking to the future, you do need to watch when your first assignment began and thus your holiday year begins/ends. Any holiday accrued but not taken by the end of the year will be lost. For that reason, it is a good idea to see what you are likely to accrue by the time of that anniversary and ensure you have taken the last few hours right at the end.

Hammyman

swingaloo wrote: »

As I said before the old agency always paid us 7.5 hrs for every day taken as holiday once we had accrued it.

Im also not sure how this rule fits in with this from the handbook

This means that you accrue just over 12 hours of holiday for every 100 standard hours worked. Each day of holiday taken will be paid at and use 8 hours of your holiday entitlement.

It fits in perfectly. If you don't work fulltime, you don't get 28 days at 7.5hrs per day.

The old agency paid you a flat 7.5hrs out of your entitlement, this agency pay based on the aforementioned 12 weekly average.

As you are agency workers on zero hour contract, your contract of employment ended with the changeover. You are on new terms and no right to TUPE.

anamenottaken

Hammyman wrote: »

It fits in perfectly. If you don't work fulltime, you don't get 28 days at 7.5hrs per day.

The old agency paid you a flat 7.5hrs out of your entitlement, this agency pay based on the aforementioned 12 weekly average.

As you are agency workers on zero hour contract, your contract of employment ended with the changeover. You are on new terms and no right to TUPE.

I don't know why you think paying 8 hours or 7.5 hours for a day's holiday "fits in perfectly". Do we know that they work 7.5 (or 8) hours a day when they do work?

The calculation of the rate of pay is based on the average rate of pay over the previous 12 weeks. (Total pay in the 12 weeks divided by total hours - and if there were weeks when they didn't work then those weeks wouldn't count and the time would stretch back accordingly. That's the law, not what they have written.)

The amount of time paid for a day's leave is only based on the previous 12 weeks if they do actually work 8 hours a day and never more or less.

If there was no transfer of undertaking then they should have been issued with a P45 and been paid for accrued holiday not taken. Swingaloo, did that happen? Did you get a P45?

liney

There is no TUPE. The client decided not to use a particular agency, so in order to continue the temps had to register with the new agency and work on a new zero hours contract; the agency was not 'taken over'.

Before the 31st January (assuming that's when your holiday year with them may expire) you should contact the old agency and request any outstanding holiday pay plus P45 if you didn't receive it when you transferred. The current agency is not responsible for the holiday pay you accrued prior to you temping for them.

getmore4less

I don'r see why TUPE does not apply, these are the sort of situations that TUPE was designed for to protect workers that are employed to do a particular contract.

liney

getmore4less wrote: »

I don'r see why TUPE does not apply, these are the sort of situations that TUPE was designed for to protect workers that are employed to do a particular contract.

Their contract was terminated and they were reinstated with another agency. They are not employees, they are temps on a contract for services and can be let go at any time.

In short, the business has not been transferred from one owner to another, which is what TUPE is designed for.http://www.acas.org.uk/index.aspx?articleid=1655 - Look at who is not covered:

"transfer of a contract to provide goods or services where this doesn't involve the transfer of a business or part of a business"