Holiday Pay - Casual Work

edrob_2

My daughter has been working as a waitress on a casual basis for 8 months, about 10 hours a week. The pay was well above minimum wage. Last week she was "sacked" - basically the boss blew his top because she was being slow serving coffee and told her to get out as she was no use to him! One of the other waitresses stuck up for her and she was told to get out too! Now you may think "well there was probably more to it than that", but one of the customers who saw what happened posted about it on trip advisor.
Anyway, effectively he has sacked them and when they went in for their wages, their P45's were there.
Now I have to say I've eaten in the restaurant myself and the food (and service) are excellent, so no complaints from me about that!

Anyway, my daughter asked me to speak to him about holiday pay. I have done so and he says holiday pay is included in her wages. I asked if that was in her contract of employment. He said yes. Although in fact my daughter says she has never signed a contract of employment with him.
Her payslips have a section that says "holiday pay" but the entry is always blank.

His contention is that he pays a generous wage for a 16 year old (as she was when she started) and that as far as he is concerned it includes holiday pay.

My reading of the situation (CAB and Direct Gov sites) is
1. She is entitled to holiday pay
2. It cannot just be rolled into her hourly rate (even if her contract - it it even exists- says it is) but has to be itemised as a separate amount.

Now he says he will look into it and if she is entitled to anything he will send it in a couple of weeks. However he says IF he has to pay that it is only payable for the current tax year. I understand that he has no obligation to allow people to roll there annual leave over to another year. However, can he apply the same rule to "holiday pay" - was it incumbent on my daughter to actually apply for holiday pay.

Anyone who can comment with concrete and definite knowledge about any of the above would be appreciated.

paddedjohn

If the employer has a holiday year that runs April to May then she may have lost any holiday accrued before April and will only be entitled to be paid for what she has accrued since then. If she wasnt informed of her leave year when she started then it runs from her start date. Work out how many hours she has worked and multiply by 12.07% to find out how many hours she has accrued.

ohreally

edrob wrote: »

His contention is that he pays a generous wage for a 16 year old (as she was when she started) and that as far as he is concerned it includes holiday pay.

My reading of the situation (CAB and Direct Gov sites) is
1. She is entitled to holiday pay
2. It cannot just be rolled into her hourly rate (even if her contract - it it even exists- says it is) but has to be itemised as a separate amount.

This situation should be a fairly easy win.

Some employers try to include holiday pay in a worker’s basic pay and say that there is no obligation to pay again when holidays are actually taken. This is known as a “rolled-up” rate of pay.
In 2006, the European Court of Justice ruled that it is unlawful to pay holiday pay as part of the hourly rate of pay, as the EWTD requires that workers are paid for their holiday at the time that they take it (Robinson-Steele v R D Services Ltd C-131/04 and C-257/04 [2006] IRLR 386). UK judgements confirmed this (Caulfield & Others v Hanson Clay Products Ltd (formerly Marshalls Clay Products Ltd).
Government guidance (GOV.UK) says: “Holiday pay should be paid for the time when annual leave is taken. An employer cannot include an amount for holiday pay in the hourly rate (known as ‘rolled-up holiday pay’). If a current contract still includes rolled-up pay, it needs to be re-negotiated.”
However, confusingly, some legal cases also confirm that as long as a worker (typically an agency worker) is told clearly, fully and transparently which part of any pay packet is intended to represent holiday pay, the employer will be allowed to set off any sums paid as holiday pay against the worker’s claim for holiday pay. In other words, where the employer has made clearly identifiable payments on account of holiday pay, a tribunal is likely to conclude that a technical breach of the WTR has not resulted in any loss to the worker.

LittleVoice

edrob wrote: »

My daughter has been working as a waitress on a casual basis for 8 months, about 10 hours a week. The pay was well above minimum wage. Last week she was "sacked" - basically the boss blew his top because she was being slow serving coffee and told her to get out as she was no use to him! One of the other waitresses stuck up for her and she was told to get out too! Now you may think "well there was probably more to it than that", but one of the customers who saw what happened posted about it on trip advisor.
Anyway, effectively he has sacked them and when they went in for their wages, their P45's were there.
Now I have to say I've eaten in the restaurant myself and the food (and service) are excellent, so no complaints from me about that!

Anyway, my daughter asked me to speak to him about holiday pay. I have done so and he says holiday pay is included in her wages. I asked if that was in her contract of employment. He said yes. Although in fact my daughter says she has never signed a contract of employment with him.
Her payslips have a section that says "holiday pay" but the entry is always blank.

His contention is that he pays a generous wage for a 16 year old (as she was when she started) and that as far as he is concerned it includes holiday pay.

My reading of the situation (CAB and Direct Gov sites) is
1. She is entitled to holiday pay
2. It cannot just be rolled into her hourly rate (even if her contract - it it even exists- says it is) but has to be itemised as a separate amount.

Now he says he will look into it and if she is entitled to anything he will send it in a couple of weeks. However he says IF he has to pay that it is only payable for the current tax year. I understand that he has no obligation to allow people to roll there annual leave over to another year. However, can he apply the same rule to "holiday pay" - was it incumbent on my daughter to actually apply for holiday pay.

Anyone who can comment with concrete and definite knowledge about any of the above would be appreciated.

The "contract of employment" is not just a signed piece of paper. The chief terms (including paid holiday entitlement) do have to be provided in writing within two months of the start of employment but they don't have to be signed by anyone.

If she is sure that she did not receive anything in writing then her holiday year does run from the date she started.

The employer cannot decide in retrospect that it ended on 5 April. It is also unusual for holiday years to begin on 6 April though many organisations do use 1 April as the start.