Advice needed re working hours

paddedjohn

SarEl wrote: »

This is what matters. A zero hours contract means that he has no contractual hours - he works as and when they employer wants. In which case he only accrues holiday when he works, and this means it is entirely possible that he has used his holiday in the way he describes. But I am afraid there is not option here - he has to ask the employer for a written statement of main particulars - he needs to know what his contractual terms are. We really can't help unless we know what these are, I'm afarid, as we are left guessing.

it cant be classed as holiday because he hasn't been paid for it, as a full time worker he is entitled to 5.6 weeks of paid leave per year (based on a 5 day week even though his hours are spread over 7 days)

SarEl

paddedjohn wrote: »

it cant be classed as holiday because he hasn't been paid for it, as a full time worker he is entitled to 5.6 weeks of paid leave per year (based on a 5 day week even though his hours are spread over 7 days)

I'm sorry - who says that he hasn't been paid for it? Because the OP hasn't. The OP tells us that her son says that he had taken the Saturdays that his own son visited as holidays and doesn't have enough leave left to go away - OP has never said that son hasn't been paid for these days holiday. Where did it say that son hasn't been paid for these holidays?

And you are making a lot of assumptions in your post about what his contractual terms are -assumptions which are are not evidenced, which is why the OP requires to determine the contractual position. For example, if he is contracted to 16 hours per week and the rest is "overtime", then as you perfectly well know, holiday does not accrue on overtime. Employers regularly use such methods with hourly paid workers to avoid such things as holiday entitlements, and it is common practice in some areas of work. So on what basis do you assume that the OP is a full-time worker and entitled to 5.6 weeks holiday?

That is why I said that the OP cannot get a clear and accurate answer without providing us with this information.

ferien_uk2011

SarEl wrote: »

I'm sorry - who says that he hasn't been paid for it? Because the OP hasn't. The OP tells us that her son says that he had taken the Saturdays that his own son visited as holidays and doesn't have enough leave left to go away - OP has never said that son hasn't been paid for these days holiday. Where did it say that son hasn't been paid for these holidays?

Yes, the OP did say her son doesn't get paid for the Saturdays (see her second post)

Jarndyce

SarEl wrote: »

I'm sorry - who says that he hasn't been paid for it? Because the OP hasn't. The OP tells us that her son says that he had taken the Saturdays that his own son visited as holidays and doesn't have enough leave left to go away - OP has never said that son hasn't been paid for these days holiday. Where did it say that son hasn't been paid for these holidays?

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Post 3 states quite clearly that he only gets paid for the hours he works.

t0rt0ise

The OP should look at the working time laws to see that it is not right that he works 7 days a week with no days off. Look at the weekly rest rules. Trouble is that if he demands his rights he's likely to get the sack so he's in a difficult position. Best to look for another bar job.

http://www.direct.gov.uk/en/Employment/Employees/WorkingHoursAndTimeOff/DG_10029451

SarEl

No - honestly, it doesn't say any of that in the OP's posts. It says that he gets paid for the hours he works, yes - he is an hourly paid worker. But it doesn't actually say anywhere that he doesn't get paid for the holidays he has taken.. It says that he doesn't get paid for shifts he doesn't do - but that is not the same thing as saying that he doesn't get paid for holidays. Has he actually asked for paid holiday and been refused it - it does not say that. This is a conversation between the OP and their son - two people who appear to have not a clue what the contractual position is. I appreciate that that isn't entirely their fault and I am not taking sides with the employer here, who should have provided a written statement of the main particulars of employment. OP's son has said he doesn't even know if he has anough holidays to take the two weeks away. So the employer hasn't denied paid holiday, and in fact hasn't "taken part" in any of this discussion. Without knowing the actual facts, we are arguing about angels dancing on a pinhead without knowing the size of the pinhead. We do not know what the basic hours - if there are indeed any basic hours - are, we do not know what the holiday entitlement is and we do not know that the employer has refused paid holidays. We don't even know whether there is a breach of the WTD in him working 7 days without a break because we don't know if the OP has waived their entitlement - the WTD says this is an entitlement, but employees do not have to abide by it. In fact all we know is the hours and days he works, which is of no help whatsoever. The OP needs the contractuial conditions, and there is no way of getting these without asking the employer.

paddedjohn

SarEl wrote: »

I'm sorry - who says that he hasn't been paid for it? Because the OP hasn't. The OP tells us that her son says that he had taken the Saturdays that his own son visited as holidays and doesn't have enough leave left to go away - OP has never said that son hasn't been paid for these days holiday. Where did it say that son hasn't been paid for these holidays?

And you are making a lot of assumptions in your post about what his contractual terms are -assumptions which are are not evidenced, which is why the OP requires to determine the contractual position. For example, if he is contracted to 16 hours per week and the rest is "overtime", then as you perfectly well know, holiday does not accrue on overtime. Employers regularly use such methods with hourly paid workers to avoid such things as holiday entitlements, and it is common practice in some areas of work. So on what basis do you assume that the OP is a full-time worker and entitled to 5.6 weeks holiday?

That is why I said that the OP cannot get a clear and accurate answer without providing us with this information.

Although i readily admit that you have far more knowledge of employment law than me i think you are reading the op post wrong, in the opening post the op tells us her son has a Saturday off each month which is treated as holiday, in post 3 she states that he doesnt get paid for the shifts he doesnt do (the saturday each month) therefore its safe to assume that the employer is not giving her son his holidays as they have to be paid.
As far as assuming that the op is entitled to 5.6 weeks holiday, it is not an assumption it is a fact, every employee has the right to a minimum of 5.6 weeks paid leave and this cant be taken away from them by anyone.

SarEl

I think you are misunderstanding what I am saying.

(a) the OP did not say her son hadn't enough holidays to go away - she said he didn't think he had enough. There is an utter lack of clarity about what he has taken, and how it has been accounted for. It is not safe to make assumptions on this - the advice needs to be accurate, because what they may or may not do about what may or may not have happened depends on the exact circumstances. I am sorry, but as I said - through no fault of their own the OP and her son appear to be clueless. Do you know that the OP's son asked for the Staurdays to be treated as holiday? Does he know that he should have asked for them to be treated as holiday? Are we absolutely certain that they weren't? No we are not certain about any of these things. And the OP seems to be relatively unconcerned about coming back and clarifying any of them. Without this clarity we are making assumptions which are not safe, and which may be incorrect.

(b) No it is not a right to 5.6 weeks holiday per year - it is an entitlement for full-time workers. We are not clear on the nature of the employment so we cannot be certain that the OP's son is a full-time worker although I would tend to agree that it is likley that the entitlement is 5.6 weeks. But we do not know that for a fact. And an entitlement is a very different thing in law from a right. A right is absolute - it must happen no matter what. An entitlement is not - no employee is required to take their annual leave entitlement. Nobody has suggested, including the OP, that the employer has taken away this entitlement - but nor does an employer have to insist on it. In other words, if the OP's son has not asked for paid holiday - exercised their entitlement - then the employer has done nothing wrong in not giving it to them. Not giving it to them, in this sense, is not taking anything away.

I am not being pedantic here - if the OP cannot clarify these matters then they need to, because going off half cocked and making a fundamental error could cause a lot more trouble. For example, are we absolutely certain that "he doesn't get paid for shifts he doesn't work" means "he doesn't get paid for holidays that he has booked". If he told the employer that he wasn't available for XX staurday shift, that isn't the same thing as "I am booking a holiday". It's a pretty rare worker that doesn't actually know that they are entitled to some paid holidays, even if they don't know exactly how many. If he hasn't had a any paid holidays at all - why hasn't he asked about it previously? Or is it possible that he has ben paid for holidays that he has booked and the OP simply hasn't checked pay slips carefully - assuming that he has them (which obviously he should) and that OP's mum has checked them before saying he isn't paid for them.

These questions are important. And the only way of getting a certain answer is to ask the employer if the OP's son doesn't have the answers. Marching in there saying "I have never been given paid holidays and I want them" without checking the facts first if the fastest way to no work at all - especially if ohreally is correct and this is a zero hours contract. You don't fight a battle until you know that there is a battle to be fought, and then you check out the terrain before going in.

oldtractor

Just to clarify the situation. We live in a remote-ish small rural village. Openings are very limited. My son doesnt have a driving licence as he cannot afford car insurance or even driving lessons at the moment. He works 5 or 6 hours per day,7 days a week in the local pub. At least he has a job and gets more money than when he was on the dole. He is a good and trustworthy worker and popular with the customers. His income is less than £10,000 gross pa and he isnt entitled to any tax credits until he is 25. He is hopeing to get a few more hours in another village shop as and when a vacancy arises. He is very willing to work. He lives at home with me,his mum. I am a housewife and dont work I dont understand employment law. my husband drives a lorry and i an employee of a company. He only knows what he does for his job and doesnt know the ins and outs of law either. We appreciate that our son is poorly paid and sort of stuck really but what can he do? He has a handful of GCSE's but isnt acadenic. He enjoys the pub work and aspires to his own place one day. He said,when asked this morning,that he takes the days as holidays as he needs the 7 day a week to make ends meet,which is true. He works all bank holidays inc xmas day and new year. He has no idea of holiday entitlement or any other rights as he was just thrilled to find employment last year. He does not have a written contract and is afraid to ask for one incase it compromises his work as if he looses this job there really is nothing else anywhere within walking distance. He is lucky to have this job. I was just concerned about the holiday thing but now I see that he needs to do 7 days a week because of the short hours ,as he said this morning sometimes is only 5 hours a day.Thank you all for your help and input.

Jarndyce

Well he has a stark choice I'm afraid - he either asserts his rights (to ask for a written statement of terms and conditions and for his rightful paid holiday entitlement) and risks the employer 'punishing' him for doing so, or he puts up and shuts up.

As he has worked there for 18 months he would have protection from unfair dismissal, but I appreciate that the decision is not that simple. Can he not approach the employer casually and ask for the time off on the basis that he "must have accrued enough paid holiday by now surely", and then afterwards say that he would like to get the employment relationship on a proper footing in future so that they both know where he stands with holiday entitlement? It doesn't have to be confrontational.

But obviously if the employer is going to deliberately exploit him and flout the law, then if I was him I would assert his rights and risk the sack, then take the employer to the cleaners at a Tribunal.