Employers withholding shift allowance when on holiday?

HarleQuinn_2

Hello everyone,

My employers are looking at bringing something in at work and I am sure it is illegal.

Basically since the new warehouse has been open (over 5 years) anyone who has worked on the night shift hours has received a night shift premium. This is 25% so on £8 per hour it rises to £10 per hour for the night shift workers.

Now, after all this time the company are looking to introduce non payment of shift allowance when you are on annual leave or on sick leave. So when on holiday or on sick leave you would only receive the £8 per hour and not the shift premium.

Am I right in thinking that this is illegal based on new European laws introduced last year?

Thanks for any help.

sangie595

If you are receiving regular shift allowances then yes, this should be included in the calculation of holiday rates. Assuming, of course, you are willing to tell your employer this, or take them to a tribunal for not paying it. Which is often the sticking point for employees.

Sick pay is different. Your legal entitlement is to SSP - so if the company give you more than SSP, then what they give is up to them. If they decided to do so, they could withdraw enhanced sickness pay altogether and just go to SSP.

So you might want to think about which battles you pick. You would win on the holiday pay (assuming you hadn't been "made redundant", in which case you wouldn't be getting any pay at all), but the employer could retaliate by removing the enhanced sick pay - and unless you and your union are prepared to take this to the wire, you would risk losing out overall. When off sick, SSP is peanuts for most people, and they struggle to pay bills. So you may not find your colleagues willing to risk it.

Oh, and one more thing - the shift allowance would have to be a regular part of your pay - if it wasn't then it is perfectly legal to base holiday pay on basic wage.

HarleQuinn_2

Thanks for the reply.

I am not worried about the sick pay element, I don't have sick anyway. The company will pay me 60 days a year sick pay as I have 5 years service but as I said I don't take this.

The holiday pay is what I am bothered about. We get shift allowance every month, we get paid monthly. It has been a regular payment for over 5 years so yes it is classed as regular or "normal" pay.

The warehouse I work in has over 200 employees across 4 shifts over 6 days. Unfortunately there is no union within the company as enough people would not sign up to one to give enough of a percentage of employees.

I am more than willing to stand up to the company and argue this point, I just need to know I have all my facts correct.

Takeaway_Addict

I believe its still going through the courts (and likely to get through) but for now I don't think it is law.

However, what you are suggesting is changing a contract anyway so its well worth you arguing against it, the company would need to show a good business reason to stop them losing if it went to a tribunal.

sangie595

Takeaway_Addict wrote: »

I believe its still going through the courts (and likely to get through) but for now I don't think it is law.

However, what you are suggesting is changing a contract anyway so its well worth you arguing against it, the company would need to show a good business reason to stop them losing if it went to a tribunal.

You are correct that European law doesn't make law - but it is through the UK courts - Bear Scotland Limited, Hertel (UK) Limited and Amec Group Limited v Fulton, Woods, Law and others [2014] UKEATS/0047/13/B1

But the OP is wrong that they don't need to care because they are never off sick. That's a crystal ball - they have no idea what will happen tomorrow or next month when they DO need sick pay. And the OP is not the only person concerned - what if their colleagues value sick pay at an enhanced rate?

The OP is correct (assuming shift allowance is regular) IN LAW. The problem with that is that you have to be willing to go to law. Notice they have no union organisation? So I wouldn't depend on all my colleagues to back me up, and I would sense a few redundancies coming on. Or a dismissal - it isn't hard to find a reason when an employer looks hard enough.

Much as I think employees need to be able to stand up to employers, I am realistic enough to know that that can be the worst decision they ever make. So the OP needs to decide what they are willing to risk.

Takeaway_Addict

sangie595 wrote: »

You are correct that European law doesn't make law - but it is through the UK courts - Bear Scotland Limited, Hertel (UK) Limited and Amec Group Limited v Fulton, Woods, Law and others [2014] UKEATS/0047/13/B1

But the OP is wrong that they don't need to care because they are never off sick. That's a crystal ball - they have no idea what will happen tomorrow or next month when they DO need sick pay. And the OP is not the only person concerned - what if their colleagues value sick pay at an enhanced rate?

The OP is correct (assuming shift allowance is regular) IN LAW. The problem with that is that you have to be willing to go to law. Notice they have no union organisation? So I wouldn't depend on all my colleagues to back me up, and I would sense a few redundancies coming on. Or a dismissal - it isn't hard to find a reason when an employer looks hard enough.

Much as I think employees need to be able to stand up to employers, I am realistic enough to know that that can be the worst decision they ever make. So the OP needs to decide what they are willing to risk.

Is it still not going through appeals though so nothing is enforcable as of this moment?

getmore4less

The definition of holiday pay is currently based on a "weeks pay" as defined in the employment act.

I think but needs checking a shift allowance should already be included as the holiday pay is based on averaging rules over the previous 12(?) weeks.

sangie595

Takeaway_Addict wrote: »

Is it still not going through appeals though so nothing is enforcable as of this moment?

Not exactly. It is an EAT ruling which is enforceable case law unless a decision is reversed in a higher court. What is enforceable at this moment is the law as it stands. That might be a short lived thing, but I doubt it since the judgement is in line with European law in other parts of employment law. TBH, no appeal will succeed, and an employer basing a change of contract on law that hasn't been made will be very dodgy for the employer.

Sick pay, however, is an entirely different matter. There is a clear statute, and whilst the level of payment varies across the EU, It is unlikely the courts will mess with this - but until they do SSP is it.

HarleQuinn_2

Nothing has been said about sick pay yet but if they are looking to remove it for holiday pay then I expect them to do the same for sick pay. I am bothered about sick pay losing shift allowance alongside holiday pay but first and foremost I want to be sure about the holiday element.

As I have stated the shift pay is normal pay and has been for 5 years now.

I don't expect huge backup from my colleagues but if something is illegal I don't have it in my character to accept it.

Undervalued

HarleQuinn wrote: »

Nothing has been said about sick pay yet but if they are looking to remove it for holiday pay then I expect them to do the same for sick pay. I am bothered about sick pay losing shift allowance alongside holiday pay but first and foremost I want to be sure about the holiday element.

But they are two different things.

SSP is in effect a government benefit (although the employer has to pay it). The government lay down the rules and if you qualify then it has to be paid.

getmore4less

http://www.legislation.gov.uk/ukpga/1996/18/part/XIV/chapter/II

WTR for holiday pay refer to the "weeks pay" in the above.