Can I accrue holiday on maternity leave if i'm hourly paid?

zombeana

Another_not_new_user wrote: »

I have been avoiding this thread because every time I have questioned an OP on their conditions and the rolled up holiday pay in the last week, they disappear without a trace and I am fed up of wasting my time on the issue. I hope the OP in this case comes back to shed some light on the issue.


To set the record straight, rolled up holiday pay is generally unlawful for employees - but it is definitely not altogether unlawful.


The entitlement to statutory maternity pay, like the entitlement to sick pay, is based on income earned - not on employment status - so this proves nothing.


What is unclear is the basis of the letter from HR. The contract is clearly a zero hours contract. The OP says so. On such contracts rolled up holiday pay is permissible provided it is shown separately. The Op is not, however, clear about what they think the letter says. It MIGHT say that these are the hours that the OP has worked (statement of fact, not contractual obligation); it MIGHT be a variation of the contract to create a minimum number of guaranteed hours; and it MIGHT be a mistake (employers make them and they are allowed to put them right if they do, even if that is to an employees detriment).


There are also questions to be asked about the OP's employment status. They assert they are an employee and not a worker. On what basis do they assert this? A zero hours contract is worker status, not employee. That is a fact, so the OP cannot be both. And it is possible, because the information is not clear, that the OP may work for an in-house (directly paid) agency (often referred to as "bank working") in which case rolled up holiday pay is entirely lawful; and accrues only on the actual hours physically spent in the workplace at work.


So the fact is that there is currently no clear answer to be given because the information provided by the OP is insufficient to form an informed opinion. One thing I am sure about - HMRC do not determine employment law and whatever they say is not relevant; and I wouldn't hold my breath on the ACAS call centre knowing anything at all. The professional ACAS mediators are brilliant - their call centre is about as useful as any of them. In other words, not very.

Sorry if that has been the case. I can't recall doing this? I have raised two threads the last one was left unresolved even though I responded to all queries and I ended up more confused than when I started. Which is what has happened with this one too! It may have been that in the past, I get so stressed about the a issue and the differing opinions I get concerned about it turning into an argument, of sorts...so back away... I apologise.


I do appreciate you providing your advice.


The letter says that it confirms my offer of the post and that I will work XX hours per week at XX amount.


I am not a worker (I believe) because I cannot turn down work. I am obligated to turn up for work every day, for a set number of hours. I am even timetabled to classes (work in a school) with set students. If I do not wish to continue with the hours offered to me, I must give 1 months notice in writing. (I thought this was a week but looking into more detail in my contract, it is a month). I also access staff benefits eg sick pay/training as any other employee would - not sure if this is relevant. I also receive a bonus, if we get one.


This is not via an agency, this is direct with the employer.


My contract reads under the title 'Duration' that the contract is permanent. It also requests exclusivity of service.


Thank you for your help

Another_not_new_user

zombeana wrote: »

Sorry if that has been the case. I can't recall doing this? I have raised two threads the last one was left unresolved even though I responded to all queries and I ended up more confused than when I started. Which is what has happened with this one too! It may have been that in the past, I get so stressed about the a issue and the differing opinions I get concerned about it turning into an argument, of sorts...so back away... I apologise.


I do appreciate you providing your advice.


The letter says that it confirms my offer of the post and that I will work XX hours per week at XX amount.


I am not a worker (I believe) because I cannot turn down work. I am obligated to turn up for work every day, for a set number of hours. I am even timetabled to classes (work in a school) with set students. If I do not wish to continue with the hours offered to me, I must give 1 months notice in writing. (I thought this was a week but looking into more detail in my contract, it is a month). I also access staff benefits eg sick pay/training as any other employee would - not sure if this is relevant. I also receive a bonus, if we get one.


This is not via an agency, this is direct with the employer.


My contract reads under the title 'Duration' that the contract is permanent. It also requests exclusivity of service.


Thank you for your help

Sorry - I wasn't referring to you (I don't think). But this is a complex area and so when you try to work it through for someone and they then don't bother to answer, it becomes dispiriting.


Just one more question - you have misunderstood something I asked which often confuses people. It's probably not the case but I have to double check. I know you do not work for an agency - but some employers have their own internal agencies (that is why I referred to bank staff as an example - the NHS is probably one of the best known to do this, but other employers do it too). So you would be paid by the "employer", but would actually work for their agency. Do you know if this is the case?


Also, can you tell me who said you don't accrue holidays and did they explain why they said this?


By the way, the confusion in this subject isn't a result of nobody challenging in law - it is actually the reverse! There are several areas of law involved here, and the actual laws, as written down, have enough loopholes to make a lace doily. So they often end up in case law. But case law is not like statute - it applies to the situation of a specific case, so it may not apply where a case is like it but not the same. Or it might apply. Or it may create case law all on its own. In other words, this is the sort of situation that explains why there are so many lawyers!

zombeana

Another_not_new_user wrote: »

Sorry - I wasn't referring to you (I don't think). But this is a complex area and so when you try to work it through for someone and they then don't bother to answer, it becomes dispiriting.


Just one more question - you have misunderstood something I asked which often confuses people. It's probably not the case but I have to double check. I know you do not work for an agency - but some employers have their own internal agencies (that is why I referred to bank staff as an example - the NHS is probably one of the best known to do this, but other employers do it too). So you would be paid by the "employer", but would actually work for their agency. Do you know if this is the case?


Also, can you tell me who said you don't accrue holidays and did they explain why they said this?


By the way, the confusion in this subject isn't a result of nobody challenging in law - it is actually the reverse! There are several areas of law involved here, and the actual laws, as written down, have enough loopholes to make a lace doily. So they often end up in case law. But case law is not like statute - it applies to the situation of a specific case, so it may not apply where a case is like it but not the same. Or it might apply. Or it may create case law all on its own. In other words, this is the sort of situation that explains why there are so many lawyers!

Hello thank you for your reply.


They do refer to them as 'bank staff'. But I am sure it wouldn't be classed as internal agency. All recruitment goes through HR, paid on the same payroll as other staff, contract held is issued in the name of the employer etc.


I was told by the recruitment team when I started that I don't accrue holiday as I'm paid it as I earn (on top of the hourly rate). When I submitted my claim for maternity leave I was told that as I'm 'bank' I don't get any annual leave whilst off. At the time I didn't realise this was possibly wrong so didn't query it.


I have since asked the question to HR re maternity and annual leave but as yet, I haven't heard back... I have also questioned their calculation of my SMP as they refuse to use an early payment for Christmas.. but that's another story.


Thanks again.

Undervalued

zombeana wrote: »

They do refer to them as 'bank staff'. But I am sure it wouldn't be classed as internal agency. All recruitment goes through HR, paid on the same payroll as other staff, contract held is issued in the name of the employer etc.

I wouldn't be so sure........

ANNU will do doubt reply presently, and is far more expert than me, but I suspect this could be exactly the type of situation she is referring to.

zombeana

Hmm. Contract does say employer: and the address/name.


Aha - contract also says signed by employee and employer. Also refers to contract holder as the 'employee'. Does that help?


I will be interested to hear.

Another_not_new_user

Yes, this is exactly what I feared.


The bottom line, based on what you have said here, is that the "employer" has had a clear intent to establish a zero hours contract for bank staff - these things have been told to you very clearly, so I don't think there is any dispute that this is what they meant to do. The fact that you have the same HR and payroll doesn't make that not the case. However, also based on what you say here, the fact appears to be that the employer has erred and strayed across a line. This may be sufficient to substantiate a claim of employee rather than worker status. However, it is not quite that simple. It never is.


If you wish to dispute your employment status based on fixed hours, the inability to refuse work and the notice requirement establishing employment status (words are not reliable - people get words wrong!) then you will have to raise a grievance. If you do not win, you will have to appeal. Then you will have to enter pre-claim mediation with ACAS, and finally an employment tribunal if it gets that far. This is not a claim for discrimination - no discrimination has occurred (although such claims never pay out what most people think they will) - it is solely for the holiday pay you are claiming. And you might lose! But even if you win, the amount would almost certainly not be much more than the cost of having to make the claim - a cost which is rarely ever awarded back.


You will have to do all this whilst pregnant / on maternity leave, and given the fact that there is no money to speak of in it - on your own because a lawyer won't pick this up, and you have no union (I assume). You don't want to pay a lawyer because you will definitely be throwing money after an amount less than your costs.


You can also lay bets that there won't be any work for you soon, although it will, of course, have nothing at all to do with making such a claim.




The moderate course would be to try to convince them that you are correct, possibly even submit a grievance and see what happens. But past that you would have to decide whether the risk, even if you win, is worth the effort and cost.


I do need to also warn you that there would be no guarantee of winning. In a case like this a tribunal could go either way. The employer does appear to have made mistakes that leave them open to a claim of employee status, but equally they have been clear throughout on what they meant. It is possible that a tribunal may give weight to the fact that these are errors - they have the power to do that. And tribunals can be wrong (either way) - it is only at EAT that law is made, and you quite certainly cannot afford to go there, no matter what the outcome. If a tribunal did decide to allow the errors (assuming your information is totally correct - I am not suggesting you are lying, but people get things wrong too!) you would be nowhere.


So, based on this, what do you want to do? I can try to give you some more guidance if you wish to take this further, but that decision has to be down to you.

Another_not_new_user

PS - for the record, rolled up holiday pay for directly "employed" bank staff (an internal agency)/ zero hours workers is lawful, provided it is clearly shown separately on the payslip. It is rarely lawful for employees.

zombeana

Thanks that's great information.


I do have a union, I spoke to the rep but he went directly to HR without asking me and has since ignored me. I have little faith in them now...!


I am lucky in that I have a relative who is an employment lawyer and has their own partnership. I have not approached him about this matter yet as he has not been well (not long term) and I didn't want to disturb him, but if decide to go any further with this he may be able to support. Though I do know there is a cost for taking anything to tribunal.


I just wonder how this can be justified as an internal agency ? Information I've found is very clear on what constitutes an employee vs worker and the terms of employment fit all the criteria for employee:


Someone who works for a business is probably an employee if most of the following are true:

• they’re required to work regularly unless they’re on leave - eg holiday, sick leave or maternity leave
• they’re required to do a minimum number of hours and expect to be paid for time worked
• a manager or supervisor is responsible for their workload, saying when a piece of work should be finished and how it should be done
• they can’t send someone else to do their work
• the business deducts tax and National Insurance contributions from their wages
• they get paid holiday (? within hourly rate)
• they’re entitled to contractual or Statutory Sick Pay, and maternity or paternity pay
• they can join the business’s pension scheme
• the business’s disciplinary and grievance procedures apply to them
• they work at the business’s premises or at an address specified by the business
• their contract sets out redundancy procedures
• the business provides the materials, tools and equipment for their work
• they only work for the business or if they do have another job, it’s completely different from their work for the business
• their contract, statement of terms and conditions or offer letter (which can be described as an ‘employment contract’) uses terms like ‘employer’ and ‘employee’

These all apply and are referred to in the contract. So is the sole argument against being an employee due to the fact they have said its zero hours? Actually (may have confused things here) the contract says variable hours 0-37, not zero, same thing I suppose. I was never at any point told I would do 0 hours. From the offer of employment, I was told my weekly hours (as I referred to the letter from HR earlier).


I do want to raise this with my employer. I have mentioned it already, but they have not come back yet.


I am worried about my employer finding this information on the forum and using it against me !

Another_not_new_user

Variable hours from 0 and zero hours are the same thing. Both mean you could have no working hours.


One of the problems with googling your rights on the internet is that they can only provide generic advice. I could, with absolute ease, disprove every single one of those bullet points by giving examples of where the same condition is met by workers and even, in some cases, by the self-employed, contractors and agency workers. And as for the last one - using words like "employer or employee" - virtually nobody knows what that means anyway, even some HR people (as you have already found out!).


But as I said, I think the employer has erred. It seems they are clear what they thought they were doing, but they have made mistakes and strayed elsewhere.


In this case I wouldn't worry about the employer finding this information. It is of as much help to them as it is to you. In other words - they might lose, and they might end up with a lot of costs. Personally, if being rational was commonplace, you'd both find a compromise, and they'd make sure they know what they are doing in future. But I don't think that'll happen. Another reason why there are so many lawyers - being rational is rare.

getmore4less

Slightly off topic but I am beginning to think that education may be the Elephant in the room.

There is a lot of focus on the retail and hospitality areas for employment practices that bend the rules.

The NHS professional/bank have squeezed the A4C on some contracts with statutory holidays and reduced grade employment.

The number of times education related issues crop up, part-time, term time, prorata and holidays seem to be a make it up as they go along and if this is a broader issue employ as workers rather than employees to avoid rights for what are effectively full time employees we have a potential block on government fixing things.
Education is a massive employer