Zero hours holiday pay(NHS)

getmore4less

The question is can a Zero hours contract holidays be based on statutory holidays or should they be prorata full time workers.

It is generaly accepted that statutory holiday pay for workers on variable hours can be calculated at 12.07%.

This is calculated based on 52 weeks and 5.6 weeks holiday so you work 46.4 weeks to generate 5.6 weeks, 5.6/46.4 = 0.1207.
reference.
http://www.direct.gov.uk/en/Employment/Employees/Timeoffandholidays/DG_10034642


Looking around the web for NHS zero hours contracts does not produce much some are 1in 9 1in12 etc so probably out of date stuff(thats the web for you).

As far as I can tell the NHS does accept that zero hours accrue holidays many policies point at working time directive legislation.

Anyway looking at the pay slips the holiday(itemised as "WTD pay") is at a rate of 12.07%.(allthough not 100% consistant there abouts).

If subsiquent legislation would require the holiday entitlements to be prorata a full time worker, it actualy makes a big difference because in the NHS max full time holidays(inc BH) is 41days so 8.2 weeks this make the accrued rate 18.72% more than 50% more than the statutory accrual.

I need to check the part time worker stuff but is there anything else I need to be looking at or am I wasting my time following this up.

The basis is coming from that part time workers should be prorat full time so this should apply to all workers including variable or zero hours.

anamenottaken

getmore4less wrote: »

It is generaly accepted that statutory holiday pay for workers on variable hours can be calculated at 12.07%.
.

It is clear from later in your post that the missing zero was just a typo.

In anticipation of the agency workers changes later this year, I too would be interested in knowing the answer.

getmore4less

thanks. .07 it is.

I am not really up on the destinction between various groups of workers and the upcoming legislation for agency

Agency providing services I can see that you should get the agencies holidays not the holidays of companies that you provide services for.

In my view the OH is an employee of the NHS on a contract that allows variable hours so should be treated like any other part time worker.

If I think I am right back pay since the OH went to zero hours will be significant.

I want to try prepare a strong case to put to HR/payroll/union since the wider implications for the trust and NHS are a big bill so I suspect they will dismiss it.

First supporting web pages are from the natioanl archives 02/02/10(can't find the cuurent page)
http://webarchive.nationalarchives.gov.uk/+/http://www.berr.gov.uk/whatwedo/employment/employment-legislation/employment-guidance/page19479.html#Introduction

Leave/holidays/breaks: annual leave, maternity and parental leave; career breaks

Part-time workers, like their full-time colleagues, are entitled to a minimum of statutory annual leave, maternity leave, and parental leave. Many of these entitlements are extended or enhanced by contractual conditions. Part-time workers should have the same leave entitlements pro rata as their full-time colleagues.
To comply with the law:

• The holiday entitlement of part-time staff should be pro rata to that of full-time workers

A current business link
http://www.businesslink.gov.uk/bdotg/action/detail?itemId=1074411968&type=RESOURCES

Pro rata contractual benefits

Part-time workers have the right to receive contractual benefits pro rata, ie in proportion to the hours they work.
This applies to benefits such as:

• paid annual leave above the statutory minimum

There is a secondary issue in that some Zero hours and casual contract have break clauses to avoid continuity so need to check the NHS/A4C policy on the service based entitlements(41 days in first post is after 10 years) basic holidays are 27+8 bh so start at 35.

getmore4less

One possibility is that zero hours contracts fall outside the the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.

http://www.legislation.gov.uk/uksi/2000/1551/contents/made

Thus fall back to the WTD regs which give statutory holidays.

anamenottaken

getmore4less wrote: »

thanks. .07 it is.

I am not really up on the destinction between various groups of workers and the upcoming legislation for agency

Agency providing services I can see that you should get the agencies holidays not the holidays of companies that you provide services for.

Whilst right now agency workers get the holiday allowance according to that which their agency offers (so always 12.07% in my experience), the new regulations will require agency workers to get the same holiday entitlement as a comparable permanent employee once they have completed 12 weeks service after 1 October 2011 (so about Christmas Eve). As you say, the NHS allowance is substantially more than statutory paid leave.

MrsManda

There are some FAQs about the new regulations mentioned by anamenottaken on the NHS employers website:
http://www.nhsemployers.org/PlanningYourWorkforce/Flexible-workforce/legislativeandpolicyframework/AgencyWorkersDirective/Pages/FAQs.aspx#8

According to these the new regulations will not apply to someone with a zero hours contract with the Trust, only if their contract is with an external agency.

The NHS staff handbook can be found on the NHS Employers website. http://www.nhsemployers.org/SiteCollectionDocuments/AfC_tc_of_service_handbook_fb.pdf

It does say that PT staff should get the same holiday (pro-rata) as FT staff but I cannot find anything which says that staff on zero hour contracts (I presume this is bank staff?) are counted as PT.

I think your OH will count as a 'worker' rather than an 'employee' but I don't know what difference it makes. It may be worth speak to ACAS to get advice.
http://www.direct.gov.uk/en/Employment/Understandingyourworkstatus/Workersemployeesandselfemployment/DG_183496

getmore4less

If zero hours don't get caught somewhere then that seems to me to defeatt he objectives of partime and agency legislation.

Looking at part time regs it looks like fixed term contract fall though the net as well.
NHS give standard terms.

Thanks for the feedback, will keep looking.

SarEl

I am possibly missing the point. A zero hours contract (which actually doesn't really exist in law - it's a variable hours contract) is a part-time worker in law - has been since the mid-90's. So all legislation applying to partime workers applies to variable contract workers, including the right not to suffer detriment because they are part-time workers. If a comparable fulltime worker gets XX days leave then a part0time worker gets the same pro-rata. I have got to admit - I don't know of any NHS bodies that don't apply this (but I don't know then all!). But there needs to be a comparator to argue it. Which shouldn't be hard.

Riyaad

Can someone explain how the amount of wtd pay you get is worked out please. It doesnt seem to be a constant % of my wages each month. I do get paid nights, sat, sun and bank holidays on top of my basic rate. does that effect things? i work full time 37.5 hrs a week with 35 days off a year including bank holidays.

getmore4less

SarEl wrote: »

I am possibly missing the point. A zero hours contract (which actually doesn't really exist in law - it's a variable hours contract) is a part-time worker in law - has been since the mid-90's. So all legislation applying to partime workers applies to variable contract workers, including the right not to suffer detriment because they are part-time workers. If a comparable fulltime worker gets XX days leave then a part0time worker gets the same pro-rata. I have got to admit - I don't know of any NHS bodies that don't apply this (but I don't know then all!). But there needs to be a comparator to argue it. Which shouldn't be hard.

Based on the payslips my OH serms to be getting 12.07% although looking at a few more it does seem to vary a bit.
I don't have the actual contract and it does not seem to be on-line in any pubic access area for the trust.

Looking at early 2009 when the stat holidays were lower the % is lower.

I think we need the contract and ask how the holiday pay is calculated and check if that is what she is getting.
Then decide if that includes the corect holiday allowance.

getmore4less

Riyaad wrote: »

Can someone explain how the amount of wtd pay you get is worked out please. It doesnt seem to be a constant % of my wages each month. I do get paid nights, sat, sun and bank holidays on top of my basic rate. does that effect things? i work full time 37.5 hrs a week with 35 days off a year including bank holidays.

Don't you just get paid holidays why would you get rolled up holidays doing full time..

Maybe this wtd is not what I think it is.