Agency workers holiday pay. Feeling conned!!!!

getmore4less

liney wrote: »

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"

TUPE cover the following

where a contract to provide goods or services is transferred in circumstances which amount to the transfer of a business or undertaking to a new employer.

If they only ever worked on this contract and no others that looks like what has happed here I would say it was covered.

cazziebo

When I worked in recruitment (10 years ago now) TUPE always applied in these circumstances. Agency staff were issued with a new contract but holiday pay etc was all honoured. Any differences in Ts & Cs had to be compensated for by incoming agency.

The client company ownership has not transferred but the contract provider has transferred.

liney

Temps are not employees - they are a 'service'. They work on a 'Contract for services'

Do you expect the new agency to become responsible for the holiday pay that the workers accrued before they worked for them? They would just replace all the temps with new ones to avoid being liable, because they could end up running at a loss. In fact, the old agency should automatically have paid outstanding holiday pay when the temps left (transferred), so they (the temps) could be claiming holiday pay twice if this was the case.

cazziebo

liney wrote: »

Temps are not employees - they are a 'service'. They work on a 'Contract for services'

Do you expect the new agency to become responsible for the holiday pay that the workers accrued before they worked for them? They would just replace all the temps with new ones to avoid being liable, because they could end up running at a loss. In fact, the old agency should automatically have paid outstanding holiday pay when the temps left (transferred), so they (the temps) could be claiming holiday pay twice if this was the case.

Not always. Many agencies - especially those who work with ongoing contracts with major companies - employ agency staff on employment contracts. This is often a stipulation with these client companies who want to avoid any confusion they could be the employer.

Having said that, even on contracts for services it is often viewed as a tupe transfer - again to protect client companies from litigation and also to ensure agency staff - who are workers whether employee status or not and therefore subject to working time regulations - getting their full annual holiday entitlement.

haveibeendone

I think the agency is calculating your holiday pay wrong by dividing the 12 week average by 5. Section 224 of the Employment Rights act does not allow for this.

For example if you worked a constant 2 days per week at £50 per day then your average weekly pay is £100. If you take a weeks holiday (2 days in effect) then you should get £100 in holiday pay.

Your Agency, from your post, seem to be saying that your average weekly pay is £100 but your average daily rate is £20. So when you take a weeks holiday (again 2 days off work) you are being paid £40.

This would be ok if your agency allowed you 28 days at £20 (total holiday pay for the year = £560) but not if they pro rata the 2 day week so that you are only eligible for (28/5*2) 11.2 days. If they are only giving you 11.2 days then the rate per day should be £50 which is back to the £560.

fluffy70

OK so i will be contentious here and suggest that you call the union that applies to you in your workplace. EIther you will have a steward on site who will.be trained and can advise or if needed I can pm you a phone no. IT definitely looks that you have been TUPEd across when the contract was taken over and if a union is in place then there would have been negotiations and agreements on the terms conditions and duration of the TUPE. WHether or not the agency have calculated holiday pay correctly I think that you need to ascertain your full terms and conditions asap.

LittleVoice

haveibeendone wrote: »

I think the agency is calculating your holiday pay wrong by dividing the 12 week average by 5.

Where are you getting that they are calculating the average day's pay by taking the average for a week and dividing by 5? (Though I agree 8 hours is one-fifth of a 40-hour week.)

We cannot know how they are calculating the holiday entitlement unless we know the start date of the newest agency worker, how many hours they have worked in total since then and how many in the 12 weeks before the latest holiday, how many hours they have been paid as holiday since they started and how much they had been paid in the 12 weeks prior to the latest holiday.

If the OP provides that data, we can check this. Without that, we cannot know what is going on.

haveibeendone

LittleVoice wrote: »

Where are you getting that they are calculating the average day's pay by taking the average for a week and dividing by 5? (Though I agree 8 hours is one-fifth of a 40-hour week.)

If the OP provides that data, we can check this. Without that, we cannot know what is going on.

I am getting it from the original post. Quoted below.

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.

LittleVoice

haveibeendone wrote: »

I am getting it from the original post. Quoted below.

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.

Apologies - I had missed that!

And, of course, you are right about it not being the correct way to calculate a day's pay. (Though it could sometimes produce the correct figure.)