Can Temps Accrue Holiday While On Sick Leave?

gardna

Hi all,

I've been temping for several months now, working full-time for a large public sector organisation.

I know that under the Agency Workers Regulations, I'm entitled to the same amount of paid holiday per annum as comparable colleagues who are directly employed.

The organisation I work for has no problem with this at all.

However the agency I work through - Pertemps - decrees that if I'm off sick I can't accrue holiday leave.

As I've just been forced to take three days off sick, this means I've also lost out on accruing holiday pay, so at the end of the leave year I'll be left with a smaller entitlement to paid time off than my permanent colleagues.

Can this be right? It seems most unfair to me, and it's certainly not 'equal treatment'.

Also, my understanding was that under the Working Time Regulations, agency workers were entitled to continue accruing holiday while on sick leave, in the same way as permanent employees.

Please can any kind person enlighten me?

Many thanks in advance,

G.

Evilm

I would guess that even the upgraded rights given by the AWR would only treat you as a Zero Hours Contract worker and therefore the answer would be 'no'.

Zero Hours workers from everything I've seen are not really entitled to paid sick leave and even if we start discussing SSP that doesn't kick in until day 4.

anamenottaken

In any case it wouldn't be a good idea to claim paid holiday in respect of SSP time as the rate of pay for that would greatly reduce your hourly/daily rate if you took any paid holiday within the following 12 weeks.

gardna

Thank you both.

The issue is not really sick pay - I know I'm not entitled to company sick pay under the the AWR.

I have been working continuously for the same hirer for six months now, therefore an unbroken assignment, and expect to be there for at least a year more. The issue is whether I continue to accrue holiday entitlement on days when I'm unable to work.

The AWR say over the course of 12 months I'm entitled to the same amount of paid annual leave as my directly-employed colleagues. So if at the end of a year, if they've had 33 days paid holiday, then surely I should?

My company, by the way, is in full agreement with this - it's the agency who argue I'm be entitled to less....

anamenottaken

gardna wrote: »

Thank you both.

The issue is not really sick pay - I know I'm not entitled to company sick pay under the the AWR.

I have been working continuously for the same hirer for six months now, therefore an unbroken assignment, and expect to be there for at least a year more. The issue is whether I continue to accrue holiday entitlement on days when I'm unable to work.

The AWR say over the course of 12 months I'm entitled to the same amount of paid annual leave as my directly-employed colleagues. So if at the end of a year, if they've had 33 days paid holiday, then surely I should?

My company, by the way, is in full agreement with this - it's the agency who argue I'm be entitled to less....

I get a rate meant to be equivalent to a directly employed person who would have a higher than statutory annual leave entitlement. It therefore changes the percentage rate at which I accrue holiday entitlement.

You should be accruing holiday on the hours you actually work equivalent to 33 days per year of a full-time person.

"My company" is your employer's client. If they want to pay extra so you can have more holiday, they could sign for hours when you don't actually work. The rate the company pays your employer covers the holiday that the agency allows you, so they would need to pay more for less work.

gardna

Thanks, Anamenottaken. I don't work pro rata - I'm full time. Therefore 33 days' paid leave should mean 33 days' paid leave, shouldn't it?

Under the AWR, I'm entitled to be treated equally (on the issue of annual leave) with comparable, directly-employed colleagues at my hirer.

Therefore it's not the agency who decide how much holiday I get, or the people I 'm working for on a day-to-day basis, for that matter - it's the fact that I'm legally entitled to the same amount of paid days per year as the people I work with.

Or are you arguing differently?

Thanks again.

anamenottaken

gardna wrote: »

Thanks, Anamenottaken. I don't work pro rata - I'm full time. Therefore 33 days' paid leave should mean 33 days' paid leave, shouldn't it?

Under the AWR, I'm entitled to be treated equally (on the issue of annual leave) with comparable, directly-employed colleagues at my hirer.

Therefore it's not the agency who decide how much holiday I get, or the people I 'm working for on a day-to-day basis, for that matter - it's the fact that I'm legally entitled to the same amount of paid days per year as the people I work with.

Or are you arguing differently?

Thanks again.

You are working part-time if you take time off for sick leave.

You are entitled to the equivalent of someone working full-time but you are not working full-time if you take sick leave. You have acknowledged that you are not entitled to sick pay (other than SSP of course).

The public sector employer would be paying the directly employed person while on sick leave and so they are accruing paid leave. The client is not paying for you for that time so you don't accrue paid holiday against it.

If they want you to have the holiday, they have to pay for the sick time too - and that's not part of their deal with the agency.

gardna

Thanks again, but it appears that's where the discrepancy lies.

The Agency Workers Regulations give temps complete parity (after 12 weeks) with direct recruits in some areas, and not in others.

NOT included:-

Occupational sick pay
Redundancy pay
Maternity pay
Company pension
Expenses
The right to claim unfair dismissal... for example.

INCLUDED:-

The same basic pay rate
The same overtime rate
The same amount of paid annual leave... for example.

Sick leave and annual leave are not interdependent - different rules apply to each. Having a day off sick does not make me a "part time" worker, as I'm contracted to work 37 hours a week. I am employed full-time. So while I may not be entitled to PAY for the day I am sick, it does not deprive me the right to accrue holiday, as in this respect the AWR class me in exactly the same category as a directly-employed member of staff.

If this isn't the case, what is the point of the regulations, and the distinctions they make between different categories of rights?

I understand what you're saying, but under the AWR, access to certain rights doesn't stop merely because a worker has to take a day off sick.

Just out of interest and to complicate things further, the organisation I work for allow me to take flexi, as long as I've accrued the necessary hours beforehand.

Pertemps' reaction to this is to penalise me on weeks where I work my 37 hours in 4 days and take the Friday off. They claim I'm only entitled to 80% of my holiday entitlement for that week, as they say annual leave is accrued daily and I've returned no hours for the Friday - a clear nonsense, as I've already fulfilled my contractual obligations, worked my full-time hours and am taking flexi leave with the full knowledge and agreement of the hirer.

It appears they have yet to catch up with the regulations - or have yet to be caught out...

LittleVoice

Oh, Pertemps!

LittleVoice

LittleVoice wrote: »

Oh, Pertemps!

You accrue holiday on hours worked, not days worked. Or, if they want, the days holiday you accrue are going to be longer on the days you work more hours.

gardna

LittleVoice wrote: »

You accrue holiday on hours worked, not days worked. Or, if they want, the days holiday you accrue are going to be longer on the days you work more hours.

Yes, at least this would be consistent, if still not legally correct!

Not with my branch, though...