Holiday entitlement advice

SirCanealot

Hi guys,

I have some confusion with how much holiday entitlement I should be getting at work. I'm not sure where to post this really, so I thought I'd make a post here. I was going to go to citizen's advice, but I thought I'd ask you guys first.

I have worked for my company for over a year and a half now, and I have been full time (35 hours a week) for about a year and a half. Since the holiday year ended last June I have been showing up on the system as 14 days' holiday. When I contacted HR in my company they told me that this was because I was still on a 16 hour a week contract and therefore this was how much holiday I received. They sent me a copy of my contract, and it states it's a temporary 16 hour a week trial contract!

I have tried reading up on this, and everything I read suggests that if my average hours have averaged full time for an amount of time then you should be recieving that amount of holiday. As I have been full time now for a large amount of time (very rarely under 35 hours a week), I should be receiving full holiday (which is 28 days as it's retail so bank holiday days are in lieu).

HR stated that people on 0 hour contracts get holiday depending on how much they work (so if they work full time they get full time holiday), but apparently I am stuck on this 16 hour contract so I only get 14 days' holiday.

My manager has said that he will place me on the rota and basically give me my holidays when I want to take them, but this is a private agreement between us, and I feel it's entirely possible that he will take the agreement back (for varying legitimate reasons on his part, however – if you get what I mean)

Can anyone offer any advice on this?

Thanks very much!

KiKi

Hopefully someone with more legal savvy than I will come along. In the meantime...

Some questions: are you always working 35 hours a week, the same days? Did your temp 16 hour a week contract have an end date? What do you mean by 'temp' contract...fixed term (ie, end date) or through an agency?

If it was fixed term, and if you always work 35 hours a week, I'd be inclined to agree that you are permanent and by virtue of continuing to work there that's an implied term in your contract.

However, if you don't always work 35 hours a week, but are contracted for 16 (and everything else is overtime - ie, that you could turn down if you didn't want to do it) then I think they are allowed to give holiday on the basis of the 16 hours.

Remember, that with over a year's service you have some protection against unfair dismissal if you wanted to challenge it (although this is likely to go up to 2 years come April), but hopefully a better legal eagle will be able to help you out! In the meantime, if you can answer the questions that will help whoever knows more than I on the matter!

KiKi

SirCanealot

Hi, Kiki. Thanks for your quick reply!

To answer your questions...

I am working 35 hours a week, but they are generally not the same days. It's a shop open 7 days a week, so my days do get shifted around quite a bit. Does this make a difference?

I got hired through the shop/company directly; no agencies involved. The exact copy of the contract that HR sent me was from 04/06/10 and is a "Temporary 12 Week Contract". The thing that really confuses me about that contract is that it states that it is 16 hours a week, but then it goes on to say I will get 28 days holiday pro rata, which means based on how many days I work, right?
Edit: So to say I've never actually signed any other contract apart from this one, but I am expected by everyone and am always working 35 hours a week...

I am on a 16 hour a week contract, but I am basically permanent, in my opinion. While I think I could technically turn down the hours, people would be very, very surprised as I am known to everyone to be full time, 5 days a week.

Hope this helps

Thanks!

getmore4less

did you start on 16hr? when did that change, any paper trail?

SirCanealot

Hiya. Thanks again for the reply!

Technically I started on one day a week. I did stay on 2 days/16 hours a week for a couple of months (I think) as I'd been off work for quite a while at that point, etc. I went up quite quickly after that to 35 hours a week.

There's no paper train of any kind. It kind of sums it up that my contract states it's a 12 week contract...

I may be able to find out when I went full time exactly, but I'm not sure the software on our system goes back that far. It's been WAY over a year though.

Thanks!

getmore4less

Pay slips should have a reasonable audit trail for hours/pay.

Your boss should be dealing with this

ask him/her I think I am full time, am I, HR say not, when are you going to fix it.

LittleVoice

KiKi wrote: »

Remember, that with over a year's service you have some protection against unfair dismissal if you wanted to challenge it (although this is likely to go up to 2 years come April),

To add - the change to 2 years is effective 1 April 2012 but is not to be retrospective and therefore the OP will not lose the protection they have at the moment.

SirCanealot

getmore4less wrote: »

Pay slips should have a reasonable audit trail for hours/pay.

Your boss should be dealing with this

ask him/her I think I am full time, am I, HR say not, when are you going to fix it.

Our company sends out electronic payslips via email, and very often we don't get them. Good, eh? This job has lots of good points, so there are reasons I'm still there... xD

Anyway, my manager said something about not being able to afford to put me on a full time contract and that he wants to keep me on a 16 hour contract to at least be able to guaranteed me those hours. I could have been put on a zero hour contract, according to him, and got full holiday allowance, but then I wouldn't have been guaranteed full hours. (yeah, god only knows xD)

I sort of need to know for a fact that it doesn't matter that my contract says 16 hours, I am entitled to that holiday allowance. So if he tells me I can't take holiday I can tell him I am or else I'm going to go to citizen's advice and then an employment tribunal.

This probably all sounds ridiculous, but as I said my job has its advantages...

To add - the change to 2 years is effective 1 April 2012 but is not to be retrospective and therefore the OP will not lose the protection they have at the moment.

That's good to know. I was thinking it would be like that, but god only knows in this economy...

Cheers, all. You've been a great help already!

[Deleted User]

Regardless to what your contract says (16 hours) they have to pay you holiday pay based on an average of your pay. They are paying you below the stat minimum this is illegal.

http://www.acas.org.uk/media/pdf/i/c/AL03_1.pdf

getmore4less

Deleted_User wrote: »

Regardless to what your contract says (16 hours) they have to pay you holiday pay based on an average of your pay. They are paying you below the stat minimum this is illegal.

http://www.acas.org.uk/media/pdf/i/c/AL03_1.pdf

That link is well out of date its from 2004/5


It's not the rate of pay that is in dispute it is the amount of holidays that accrue which is on contractual hours.

KiKi

Absolutely - the dispute is whether or not the OP is a full time member of staff or not - and I have a horrible feeling it will officially be 'not'. And therefore leave wouldn't accrue.

But I suspect we need a SarEl or a LazyDaisy to confirm the legal position!

KiKi