holiday pay - night to day shift

ali-t

Just wondering about the legality of this situation and if anyone on here knows if it can be done.

My partner works night shift and has done for the majority of the last 2 years. He started on days and was fairly quickly moved to nights where he has been apart from a 1 week period earlier this year.

His work have now said night shift is ending and he will move to days (lower rate of pay). Day shift starts next week and he will have 2 weeks on days before Xmas holidays. Their holiday entitlement runs Jan to Dec so he is going to be off for 2 weeks at Xmas as his work shuts down.

His work have indicated that holiday pay over Xmas will be at day rate but this seems really unfair when in essence the holiday entitlement will have been accrued while on nights. Can they do this?

TBagpuss

what does his contract say?

getmore4less

Conveniently the rules(in the employment act) cover this as the rate of pay has changed, they need to use the average method.

it is a bit convoluted as the holidays are in the working time regulations but the "weeks pay" they refer too are in the employment act.

I don't have the links to hand(on phone) for this one. goggle weeks pay employment act might find them

ali-t

I don't have access to his contract and pretty sure there is nothing in the handbook. The last time he was changed from days to nights he only got a couple of days notice. Thanks getmore4less I'll have a look for that.

cannyscot_2

There is a recent case that went to europe which means people on shifts are entitled to the av of the last 12 weeks . it has only just happened so I think you'd need to make a claim to employers -maybe through union?
http://www.theguardian.com/law/2014/nov/03/law-urgently-needed-stop-backdated-holiday-pay-claims-employers

getmore4less

cannyscot wrote: »

There is a recent case that went to europe which means people on shifts are entitled to the av of the last 12 weeks . it has only just happened so I think you'd need to make a claim to employers -maybe through union?
http://www.theguardian.com/law/2014/nov/03/law-urgently-needed-stop-backdated-holiday-pay-claims-employers

Not read the link but the average rule for a "weeks wage" has been in the employment act and that applies to variable pay situations.

specialboy

He earned the holiday pay at the higher rate so should be paid at that, every £1 you earn in wages earns you 12.07% holiday so they can't say that his pay is at the lower rate.

getmore4less

specialboy wrote: »

He earned the holiday pay at the higher rate so should be paid at that, every £1 you earn in wages earns you 12.07% holiday so they can't say that his pay is at the lower rate.

That is not what the law says....

Working time regulation define holiday in time and paid at a "weeks pay" when taken.

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

A weeks pay is defined in the employment act.

Exercise for the reader.

ali-t

Thanks everyone, I will give him the info so he is prepared when speaking to his manager. Thanks.

getmore4less

ON second thoughts there is a potential catch.

the link above points to the employment act 221 -224

http://www.legislation.gov.uk/ukpga/1996/18/contents

the employer may argue that section 221.2 applies at the calculation date.

it could be argued that 222 applies since during the 12 week period there was a change in hours/pay

ali-t

getmore4less wrote: »

ON second thoughts there is a potential catch.

the link above points to the employment act 221 -224

http://www.legislation.gov.uk/ukpga/1996/18/contents

the employer may argue that section 221.2 applies at the calculation date.

it could be argued that 222 applies since during the 12 week period there was a change in hours/pay

hmmm, interesting but I think they might be swayed by mention of the legislation and won't have done much research on HR implications. Thanks for that though, the more info he has to go with the better - even if his hand only shows what goes in his favour.