Bank Holidays (again!)

moose1982

Hi and sorry for yet another thread about Bank Holidays, this forum is filling up with them!

I'm asking on here because even ACAS don't know the answer.

Basically, a friend (not me, I assure you, I'm unemployed) works in a care home, Monday to Friday and daytime hours. He gets the minimum days off in holiday, ie 28 with Bank Holidays included. However, as you can guess, most Bank Holidays fall on a working day for him. He is not allowed the time off, same as say emergency services workers really, the care home needs workers.

However, for him working the Bank Holiday, he is given double pay but no day in lieu, so he actually gets 20 days holiday. Are they allowed to deduct a day of holiday in exchange for an extra days money?

I suspect not but with ACAS being incredibly helpful, I was hoping for some helpful responses on here.

In case it matters, he has been there for about 3 years now and there is no increase in days off for length of service.

Thanks

liney

No. The minimum rest period is 5.6 weeks per year, so he cannot 'sell back' any holidays which would reduce his rest period to less than 5.6 weeks. See - http://news.bbc.co.uk/1/hi/business/7740249.stm

Holidays can be sold back to the company, but only when they are in excess to the statutory minimum.

SarEl

You know what - it would be a mercy to the world if we got rid of public holidays. They are more trouble than they are worth. Just give everyone 28 days and have done with it!

Tecnically, you are correct - he should get a lieu day. I say technically because there is a catch of course. There is no reason why the have to pay double time or any extra time at all for working on a bank holiday. So he could be trading his extra pay to get the holidays he is entitled to. That doesn't change his entitlement of course, or the fact that it is the law that he is entitled to 28 days. But given what I suspect is his pay level, he may not really want that trade-off, so it must be a decision he takes. Standing up for his rights may cost him his double time payments - and probably will. It depends which is more important to him.

And if ACAS were any good (at anything) they would have known that answer - it's some of the most basic employment law around. Yet more evidence of how useless their call centre is now.

maginot

I too am surprised ACAS do not know this answer.
Try ringing them again, you may just have got someone who started or is just not very good.

28 days are the minimum holidays for anyone who works 5 days a week and as mentioned by other posters this can not be reduced, even if they paid double. Are you sure you are only getting 27 days and have lost a days holiday due to working the bank holiday?

moose1982

Thanks to you all, I thought this was the case, now to convince my friend to stand up for himself (wish me luck!).

SarEl, I know how you feel about Bank Holidays and I felt the same way when I worked nights years ago. We did 11pm until 7am and so sometimes it was 11pm on Christmas Eve until 7am on Christmas Day, I could understand the way the day worked but some of our temps couldn't see it the same way.

ACAS can be on the ball sometimes, but as you say maginot, we may have got the wrong person. I say we because I phoned up from here with him via speakerphone so he could get the correct answer, it was frustrating that they didn't know. I've picked up some basic employment law over my time and knew something was wrong.

I guess my next question is, apart from confronting the management, what else can be done? Ideally anonymous so that no-one loses their job at the care home, it seems to be how they work, something goes wrong, no matter how trivial, someone loses their job, even if they weren't involved and the management, governors and trustees all deny anything when tribunals come up. I probably should have mentioned it is a charity but I know it still doesn't exclude them from employment law.

SarEl

I am afraid there is no anonymous way to do this. You have to go down the route of tribunals because only an Employment tribunal can determine that employment law is being broken. And that means exhausting the employers internal grievance procedures first. And if, as I suspect, he has less than 12 months employment (or two years from April) I suspect he may find himself redundant / dismissed / unsuitable or something else that results in unemployment. The only really possible route is a collective route - no ring-leaders, so harder (but not impossible!) to pick off.

By the way - I wasn't surprised ACAS didn't know the answer. Nothing that I hear about ACAS surprises me any more. I am afraid I hear too many stories about what ACAS have told people, verging from the wrong to the dangerously wrong, all shades in between, and, I am afraid, some cases of serious misconduct (like some "advisors" recommending people to specific solicitiors - which is something they are not allowed to do).

moose1982

Thanks SarEl. He's been there over 3 years, so he'll be protected in that way, but they'll find another reason to get shot of him if they really wanted. I guess it'll depend on him getting others on his side and doing it collectively, as you suggest, that way it'll be hard really to get rid of anyone because they need some staff! It's a shame it cannot be done anonymously though, that would have worked and I think he would've gone for that, instead I have a strange feeling that even if I show him the facts, backed up by 100 employment solicitors, he won't go to an Employment Tribunal. I just find it frustrating that employers can do things like this and get away with it.

ACAS shouldn't be recommending any solicitors, maybe if it was helping via a yell.com search if the caller asked, that wouldn't be as bad, but it may well verge on personal interest if not. I used a solicitor for my last job and I would recommend him, very helpful and didn't charge me for everything he probably should have done such as emails and telephone calls.

SarEl

There is one "anonymous" way of doing it - unionise! Then get an official to do it on behalf of "their members" - and unionising sounds like a bloody good idea anyway.

moose1982

Having never worked in the care industry, which union should we be looking at please?

Thanks for the swift reply btw

SarEl

There are a lot that cover it, and I wouldn't recommend any one - unions are as good as their members, and that varies from area to area. If it is voluntary sector then UNITE have a special sector for such employees. But it might be a good idea to ask around (not at work, obviously!). And the union won't be running in there straight away as you have to have a qualifying period of membership - but then there isn't a bank holiday any time soon either. But do bear in mind what I said. He has to be sure he's wanting the holiday and not the extra pay - because it's likley to be a trade off. As soon as they realise they will need legal advice to check their position, someone will tell them they don't have to pay double time! We had a similar sort of thing here a few weeks ago where someone wanted to know how to sell their statutory holiday to the employer because they wanted to sell it and the employer wanted to pay for it. They didn't like the fact that they were told that even if they both agreed to do it - they couldn't do it because it was unlawful. Now obviously, the test of whether something is actually unlawful is when someone takes it to court - arrangements (deliberate or not) that never get to court are simply "stuff that happens". So if everyoe (or he) is happy with the current arrangement and prefers the money, it doesn't make it right, but what is right may not matter to them!

dawyldthing

the bank holiday this year wasn't Christmas day as i also got double time on Christmas day. But if he had to work the bank holiday then he should have it off whenever he choses