Calculating holiday pay and notice pay

kelloggs36

My DD went into work yesterday and was told that as of that day, her contract had ceased and was sent home. She has worked there since 20th October 2010 and her final working day was 10th Jan 2011.

Her contract states the following:
Hours of work:
You will be required to work an average of 1 day per week and all benefits will be pro-rated at one fifth of that provided to full-time members of staff.

Holiday:
Holidays are accrued as employees work. No holiday is accrued or may be taken int eh first 3 months of work. The full holiday procedures are detailed in your addendum.

The addendum states:
2.6 Holiday is accrued after 3 months of service, hence during the first 3 months of employment no holiday can be taken. After the first 3 months of service the number of days holiday that has been accrued is determined by Number of completed months X 1.6 for an employee working 40 hours per week.

Termination of Employment By The Company:

The periods of notice applicable to your employment, subject to the Company's right to terminate your employment without notice for misconduct in accordance with the Company's disciplinary rules, detailed within your addendum, are as follows:

Period of service: 4 weeks and under 2 years' service - 1 week.

I have not stated all the terms but these are all those relating to hours of work and holiday.

My question is this:

How will the employer calculate her notice and holiday? Her actual hours of work were much above the 8 hours (in fact they average 28.75 per week over the past 12 weeks). Will the employer only be obliged to pay her 8 hours (as it is just states average hours as normal), or will they have to use the actual average to calculate it on?

With regards the holiday, I understand that it is unlawful to not give holiday as it accrues from day 1 - we fully understand that she was not allowed to take it for the first 3 months, but she has accrued it. Will they add on the notice period to calculate the holiday entitlement?

Sorry to go on, but I hope that somebody can understand what I am on about!!

Uncertain

kelloggs36 wrote: »

My DD went into work yesterday and was told that as of that day, her contract had ceased and was sent home. She has worked there since 20th October 2010 and her final working day was 10th Jan 2011.

Her contract states the following:
Hours of work:
You will be required to work an average of 1 day per week and all benefits will be pro-rated at one fifth of that provided to full-time members of staff.

Holiday:
Holidays are accrued as employees work. No holiday is accrued or may be taken int eh first 3 months of work. The full holiday procedures are detailed in your addendum.

The addendum states:
2.6 Holiday is accrued after 3 months of service, hence during the first 3 months of employment no holiday can be taken. After the first 3 months of service the number of days holiday that has been accrued is determined by Number of completed months X 1.6 for an employee working 40 hours per week.

Termination of Employment By The Company:

The periods of notice applicable to your employment, subject to the Company's right to terminate your employment without notice for misconduct in accordance with the Company's disciplinary rules, detailed within your addendum, are as follows:

Period of service: 4 weeks and under 2 years' service - 1 week.

I have not stated all the terms but these are all those relating to hours of work and holiday.

My question is this:

How will the employer calculate her notice and holiday? Her actual hours of work were much above the 8 hours (in fact they average 28.75 per week over the past 12 weeks). Will the employer only be obliged to pay her 8 hours (as it is just states average hours as normal), or will they have to use the actual average to calculate it on?

With regards the holiday, I understand that it is unlawful to not give holiday as it accrues from day 1 - we fully understand that she was not allowed to take it for the first 3 months, but she has accrued it. Will they add on the notice period to calculate the holiday entitlement?

Sorry to go on, but I hope that somebody can understand what I am on about!!

Yes she has accrued holiday regardless of what her contract may say.

Pro rata 28 days per year.

The extra hours may count as overtime so it is possible she may not get holiday on these. Worth getting some advice on this point from ACAS.

One week's pay in lieu of notice - again may only be at contracted hours - again take advice. Holiday accrues during this week as well.

Suggest you re-post this question on the employment board for a better response.

paddedjohn

assuming the rest of the employees were given the minimum 28 days then she was entitled to 1/5 of this per year, therefore between october 20th and jan 17th(end of notice) she has accrued about 1.4 days holiday pay. did she have any paid time off over xmas.

kelloggs36

before she started, she was told that the job was full-time (appparantly no full-time staff has a contract stating any more than 8 hours per week). For some weeks it was in excess of 40 weeks. Most of the staff were on fixed term contracts. When I spoke to ACAS they told me to calculate her holiday pay as: Average hours in past 12 weeks, X 5.6/52 X number of weeks there ie 12. Her payslip does not state hours as being classed as overtime.

[Deleted User]

Best practice for an Employer in this situation is to base the calculation on a 12 week average as previous poster states. You are correct that Holiday is accrued from day 1.

kelloggs36

No pay over Christmas and she was put down on a rota every week with no consultation - ie she wasn't asked if she wanted extra hours, she was expected to do whatever they put her down for which was fine as it was always more than the minimum.

LittleVoice

kelloggs36 wrote: »

No pay over Christmas and she was put down on a rota every week with no consultation - ie she wasn't asked if she wanted extra hours, she was expected to do whatever they put her down for which was fine as it was always more than the minimum.

I replied to this this morning but my post has disappeared (and so has my earlier post in this thread - very odd).

It looks as though the 40 hours is perhaps a way they are trying to use to reduce entitlements.

If in fact they are paying their part-time staff with a holiday accrual rate of 1.6 days/month worked and not paying for bank holidays or the equivalent amount of paid time then they are doubly wrong.

Coach and horses through that