employers calculation on my holiday pay question?

oneblondebrow

Hi all,

I was wondering if anyone could help me with an issue I am.having at the moment?.

Basically when I started my current job just over 5 years ago it was shift work and my hours would vary weekly, because of this my daily annual leave pay is worked out as the average daily hours over the previous 11 week period (not 12 weeks which I understand is the norm).

For the last just over 3 years my working hours have been fixed, I now do 8 hours Mon, Tue, Wed 10 hours Sat and 13 hours Sun. My holiday pay is still worked out as the average daily hours over the previous 11 weeks. My question are..

1. Is what I now work classed as shiftwork still? And if not should they find an alternative way to pay my annual leave?

2. I so not get paid sick days, if I have sick time off that fall in the 11 weeks calculation then that would reduce my daily holiday pay, is this allowed? For instance in a worse case scenario (which has happened to one of my work mates) I were to have an extended period off time off sick, lets say for arguments sake that this was over 11 weeks off, although I will be accruing annual leave whilst on sick leave if I were to want to use that annual leave before returning to work the daily annual leave pay will be 0 hours and thus £0, surely this is not what my employers should do? Or can they?

Many thanks for lending me you ears.

Savvy_Sue

You shouldn't be any worse off for holidays whichever way they are calculated, so if the regular hours are important to you I'd ask for confirmation in writing!

Also, if you're off sick and then want to book leave, I believe that your holiday pay should be based on 'normal' weeks and not sick weeks. But I hope someone else will confirm or deny this.

oneblondebrow

Savvy_Sue wrote: »

You shouldn't be any worse off for holidays whichever way they are calculated, so if the regular hours are important to you I'd ask for confirmation in writing!

Also, if you're off sick and then want to book leave, I believe that your holiday pay should be based on 'normal' weeks and not sick weeks. But I hope someone else will confirm or deny this.

Thanks for the reply

I am in the process of asking my HR department these questions but to be honest they are pretty useless so have been looking for any documents that would help my case but had no luck.

Something that states I should not be any worse off for having sick days deducted from my average over 12 months so I can pass this info on.

Any ideas?

Savvy_Sue

Workers with no normal working hours:
• � If a worker has no normal working hours then a week’s pay is the average
pay received over the preceding 12 weeks. Any week for which no pay was
due should be replaced by the last previous week for which pay was due.

From ACAS website

oneblondebrow

Good old ACAS.

My HR and Payroll department are becoming tired of me asking these questions, as I said to them I don't expect anything above what I am owed, I work for a very big international company that should know all this.

The issue has come about on my last pay packet as well, I was paid 3 days holiday using the average 12 weeks calculation and was only paid for 6.3 hours, my average daily hours per week are 9.4 so pretty short, its because I had some time off over the past 12 weeks. This proves that the way they are calculating is wrong.

Thanks for the help

getmore4less

Averaging is for when the hourly rate varies, to work out a hourly rate of pay to apply to the holiday pay.

If the pay is the same for all the hours then no need to average.

You only count the pay for the hours worked going back 12 weeks of paid work(substituting earlier weeks for any unpaid weeks.

The number of hours used for holiday is a seperate calculation

if you work fixed hours per week then thats what you use to calculate the holiday due and allocate depening on days taken/normal hours for the day.

If you have a week off you should get paid for 3*8+10+13=43 hours.

oneblondebrow

getmore4less wrote: »

Averaging is for when the hourly rate varies, to work out a hourly rate of pay to apply to the holiday pay.

If the pay is the same for all the hours then no need to average.

You only count the pay for the hours worked going back 12 weeks of paid work(substituting earlier weeks for any unpaid weeks.

The number of hours used for holiday is a seperate calculation

if you work fixed hours per week then thats what you use to calculate the holiday due and allocate depening on days taken/normal hours for the day.

If you have a week off you should get paid for 3*8+10+13=43 hours.

Ah ok, So if i only take one days holiday it should be 3x8+10+13=47/5 (as i always only work 5 days a week), So one days Holiday pay should be 9.4hours worth of pay?

I am speaking to them tomorrow, Is there any documentation that references how the holiday pay is calculated and that if i am off unpaid sick in any of the previous 12 weeks then they should revert to the previous full working week because i know they do not agree with what i am saying.

oneblondebrow

Ok, had a conversation with HR and Payroll today and they are going to look into it, Apparently Holiday pay is paid to all employee's the same way as it is me (we are talking tens of thousands in uk alone), Even though we all have a contractual set amount of hours/pay per week, Now i understand that this could actually work in my favour as if i do any overtime within the calculated 12 weeks then it would bump up my average daily hours/pay for my annual leave pay but they will not concede the fact that if i had any unpaid leave within those 12 weeks (be it unpaid sick, unpaid parental, unpaid dependant leave) then it will greatly reduce my average hours for my annual leave pay, they do not agree that they should then revert to a previous full working week for average hours, Obviously i know what my average hours are as i do 47 hours a week everyweek (barring any overtime).

the issue i have is they are not going to be easy to budge as it would mean they have calculated every employee's annual leave pay incorrectly for years.

Am i going down the correct route with this grevience? any suggestions on how to proceed?

getmore4less

You have to dig around in the working time directive and the employment acts to capture the info.

direct.gov does some consolidation.


here is the employment act weeks pay
http://www.legislation.gov.uk/ukpga/1996/18/part/XIV/chapter/II

This is used in the employment act in places like redundancy payments

http://www.legislation.gov.uk/uksi/1998/1833/regulation/16/made

refers back to the employment act.

I would need a look at the actual wording of the holiday policy it may be quite close to what is said but not as intended by the WTD.

I think the issue will be they may try to fix it by incimenting what they have when they probably really need to throw that away and start again using averaging for variable rates to get an hourly rate and holiday calculation based on hours.


Ah ok, So if i only take one days holiday it should be 3x8+10+13=47/5 (as i always only work 5 days a week), So one days Holiday pay should be 9.4hours worth of pay?

Normaly you would do this by hours and just pay the same number as a normal day and take that off the holiday total, this can lead to slight differences if you allways take the long or short days but not enough to bother most people.

paddedjohn

Since you have been doing 43hrs per week for 3years now you should be working your holidays out in hours, 5.6x43=240.8 so that means you should get 241 hours holiday per year. If you have a Saturday off you use 10 hrs, if you have a Wednesday off you use 8 hrs etc etc and if you are off on a bank holiday Monday you use 8 hrs also.

oneblondebrow

Thanks for all of your help guys, GETMORE4LESS, i have emailed the relevant sections of those legislations you gave me and hopefully once they have looked into it themselves come back to me agreeing, I expect more of a struggle due to past issue's but fingers crossed.