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

Another_not_new_user

getmore4less wrote: »

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

There are elephants in every room and the elephants are getting bigger. Whether you call it public sector austerity measures, the recession, shareholders profits or whatever, the fact is that workers are getting squeezed more and more, and have less and less ability to actually exercise their so called rights. And I doubt any government will fix things - in the end it is easy to find rhetoric, and harder to tell the wealthy that they shouldn't get everything. The rich get richer and the poor....

zombeana

Thanks all for your help and advice. I am now waiting for a response from HR.

At this point I think i'd be relieved if they didn't offer me any hours on my return... not sure I want to go back now! Now I worry about references! Another concern is I have 8 weeks left until I go on leave and I don't want them to suddenly drop my hours now, or refuse to pay my maternity leave (could this happen? I doubt it but, I am very paranoid now)...

Also a side note - feel slightly more confident in my case as I used to work in the HR team, for 3 years in fact. I left because they made the majority of the team redundant and the office morale was just awful. I also wanted to pursue another career and started retraining - anyway, that's irrelevant. But - this exact issue was raised by another member of staff, very informally as they dropped into the office one day. The staff member was fobbed off by HR, after they left the then HR director verbally admitted the problem they raised was indeed correct (bank staff are employees - why don't they accrue annual leave and leave they can actually take?) and there was an issue with the bank contracts then and told the team it was a project they would start to address this year....

Another_not_new_user

zombeana wrote: »

Thanks all for your help and advice. I am now waiting for a response from HR.

At this point I think i'd be relieved if they didn't offer me any hours on my return... not sure I want to go back now! Now I worry about references! Another concern is I have 8 weeks left until I go on leave and I don't want them to suddenly drop my hours now, or refuse to pay my maternity leave (could this happen? I doubt it but, I am very paranoid now)...

Also a side note - feel slightly more confident in my case as I used to work in the HR team, for 3 years in fact. I left because they made the majority of the team redundant and the office morale was just awful. I also wanted to pursue another career and started retraining - anyway, that's irrelevant. But - this exact issue was raised by another member of staff, very informally as they dropped into the office one day. The staff member was fobbed off by HR, after they left the then HR director verbally admitted the problem they raised was indeed correct (bank staff are employees - why don't they accrue annual leave and leave they can actually take?) and there was an issue with the bank contracts then and told the team it was a project they would start to address this year....

It is indeed a contractual issue it would seem. Bank staff are usually workers and not employees - and this is based on the contractual terms. If the employer has known about their error for three years and done nothing about it, then they are idiots. A bit of holiday pay is the thin edge of the wedge - they are risking much bigger stakes.


I wouldn't be too worried about right now though - they may be idiots, but I'd be astounded if they were daft enough to start messing with your hours or maternity pay having raised an issue relating to statutory rights, because that then would start into the "bigger stakes" territory. If they are minded to be that petty, it is much more likely to be on grounds you can't prove - like having no hours to offer when you are due to return to work. But that is assuming you wish to go back - assuming you wish to return to work at all, you may decide to use some of your maternity leave to start checking out the market for a better job with an employer who knows what they are about.

zombeana

Sorry to resurrect and old thread but this issue has developed And i had some good advice..

My employer has responded. They have told me I can't accrue holiday for my first 18 weeks on smp/omp because the average weekly earnings they used to calculate my smp included rolled up holiday pay. So they're saying already getting it. Doesn't sound right to me. I'm allowed to accrue it for the final 21 weeks but not the final 12 if I choose to take additional maternity. Really!?

Another_not_new_user

zombeana wrote: »

Sorry to resurrect and old thread but this issue has developed And i had some good advice..

My employer has responded. They have told me I can't accrue holiday for my first 18 weeks on smp/omp because the average weekly earnings they used to calculate my smp included rolled up holiday pay. So they're saying already getting it. Doesn't sound right to me. I'm allowed to accrue it for the final 21 weeks but not the final 12 if I choose to take additional maternity. Really!?

Another issue- I'm hourly paid as I said. I started a new temp role a month ago on a higher salary, I've applied for this as a permanent role as it was suggested to me (and i really want it!). If I get the perm role the holiday issue disappears but the issue is then - shouldn't my smp be recalculated re alabaster ? As I'll get a pay rise. And - even more complex, if I don't get the perm job I've had the pay rise, on a temp basis, for at least 3 months before going on mat leave.....

This isn't really a new issue - it's a recycled version of the old one. If you are a worker (and thus on a zero hours contract), rolled up holiday pay is still lawful, so assuming that it is rolled up, they would be correct. But then you don't accrue holiday at any time because there are no hours to accrue it on if you don't go to work, maternity leave or not! So one or the other is true, not both. If you are an employee, in almost all circumstances, rolled up holiday pay is not lawful (and given their performance so far I'd lay bets on it not being an exception), so you do accrue holiday throughout because they are breaking the law!


But it still comes down to how far you are willing to push this given you really want the job. The better part of valour is sometimes not to argue about what you know is your right, if the "payoff" isn't worth the cost. Only you can decide that.


I have no idea what alabaster has to do with this, and I have racked my brains trying to work out what you meant to type. But yes, if you get a permanent role with fixed hours, that is the pay upon which your smp should be based. There is a date upon which the maternity pay is calculated, but I'm afraid I don't know that - someone else will - as I haven't ever needed to know what it is!


Have you ever thought of working for an employer who knows what they are doing?

zombeana

Alabaster was the case law that is now referenced in hmrc smp manual for recalculating smp if a woman recieves a pay increase after her average weekly earnings were calculated.

.

Another_not_new_user

Ah - case law isn't usually referenced like that, and I wouldn't recognise tax law without a case reference.


Bearing in mind that I am going to point out very clearly, for the avoidance of doubt, that I do not see someone who rocks the boat getting a "permanent job" _ I have said it before but I don't want you missing that point because having no job must be a choice you make if it comes to the stakes being that high.... Managers only have so much influence - if the employer is out to get you, they will get you and any manager who stands in the way will be leaving shortly afterwards too.


Unless they can evidence one of the rare exceptions (and they are very rare) then they cannot pay rolled up holiday pay to an employee. So if they had taken legal advice, that would have been the first thing that they were told. That would have been followed by the lawyer telling them that since they cannot pay rolled up holiday pay, of course they cannot "roll up" holiday pay for anything else!


But it's the standard advice, you must see the grievance process through, and then it's a tribunal for which you will have to pay. There isn't another way around it. This still all hinges around the fact that they are operating a hybrid, no matter what they say. If you are an employee they cannot operate worker employment practices, and vice versa. But only you can take it to the mat. And that is a tribunal.