Holiday Pay (Have not received any)

anamenottaken

Kim_kim wrote: »

Are they paying you as much as or more than minimum wage + 12..08%?

Because it would be lawful for them to pay you like that.

Not lawful if they don't actually specify what holiday pay is being given.

By the way, the percentage to use is 12.07% to 2 decimal places. My employer uses the even more accurate 12.069%. The resulting paid time off cannot be rounded down but can be rounded up.

The OP says, "We do get something called 'comfort pay', which is an extra 30mins to 1 hour extra pay depending on how many hours we work in one day. The more hours we do, the more 'comfort pay' we get. This is just an incentive for people to stay longer seeing as you can come and go as you please." If they paid 30 minutes for unworked time when worked was 5, they could try to argue that they were paying holiday during that time.

Kim_kim

anamenottaken wrote: »

Not lawful if they don't actually specify what holiday pay is being given.

By the way, the percentage to use is 12.07% to 2 decimal places. My employer uses the even more accurate 12.069%. The resulting paid time off cannot be rounded down but can be rounded up.

The OP says, "We do get something called 'comfort pay', which is an extra 30mins to 1 hour extra pay depending on how many hours we work in one day. The more hours we do, the more 'comfort pay' we get. This is just an incentive for people to stay longer seeing as you can come and go as you please." If they paid 30 minutes for unworked time when worked was 5, they could try to argue that they were paying holiday during that time.

My employer use a slightly more generous % for casual staff - hence why I wasn't sure what the legal minimum was.

surfer9

sangie595 wrote: »

I'd also recommend sticking to the polite approach. You have correctly worked out that there may be a sudden requirement for cuts in pay, hours, or jobs, in the near future - and that may be a bigger loss than any back pay for you, depending on your circumstances - do you need the job and is other employment easy to obtain?

I am not reliant on the job to help me in life in terms of career or money.......though I'd like to stay on for now. It could be something I can question in future - when I choose to leave - I could ask about it then, and if they don't pay up - take it to tribunal.

If it came to tribunal now....I'd like to be sure I'd win if it went to tribunal. There is no doubt I have not been paid Holiday Pay at all in the past 3 years, but I'd need to be sure I can provide, or my employer is forced to provide the information a hearing would require before commencing with a tribunal. Anyone know what evidence would be needed?

surfer9

anamenottaken wrote: »

Not lawful if they don't actually specify what holiday pay is being given.

By the way, the percentage to use is 12.07% to 2 decimal places. My employer uses the even more accurate 12.069%. The resulting paid time off cannot be rounded down but can be rounded up.

The OP says, "We do get something called 'comfort pay', which is an extra 30mins to 1 hour extra pay depending on how many hours we work in one day. The more hours we do, the more 'comfort pay' we get. This is just an incentive for people to stay longer seeing as you can come and go as you please." If they paid 30 minutes for unworked time when worked was 5, they could try to argue that they were paying holiday during that time.

I guess this could get them out of it. Though 'comfort pay' strictly isn't anything to do with Holiday Pay - they may get away with claiming it is. My employers, and I, know it is not set up to count as Holiday Pay as they have never stated that it covers that, as well as the fact that they only pay 'comfort pay' if you work more than 5 hours in a day. If it was paying towards holiday pay then they'd have to add a percentage extra pay per hour worked.

I guess what decides whether I question my employer about Holiday Pay or not is........What would a tribunal be looking for as evidence? Does Holiday Pay need to clearly be separately indicted on a payslip?

anamenottaken

surfer9 wrote: »

Does Holiday Pay need to clearly be separately indicted on a payslip?

Yes. It has to be shown separately. Google "rolled up holiday pay", making sure it is a UK current site. Example https://www.gov.uk/holiday-entitlement-rights/holiday-pay-the-basics

surfer9

No Holiday Pay, No Contract, No Written Statement of Employment, + notice.

1. I have not taken this up with my employer yet.....but I have no contract and no written statement of employment particulars which is supposed to be given to you between 1-2 months of working for an employer if no contract is created.

I have read that an employee can claim 2-4 weeks pay for the lack of a Statement of employment from the employer as long as they successfully brought another substantive claim.....which would be the lack of holiday pay for the past 2 years.

Question:

How would a tribunal know whether a 'statement of employment' had been given out if it was my word against the employers?. Are Statements of Employment similar to contracts in that 2 would need to be produced and signed?


Notice:

2. They just tell us employees that we can give them zero notice and they can give us zero notice. But from what I have now read - by law we need to give 1 week and they should give 3 weeks notice to me as I've worked there for 3 years. Correct? - So if they say they no longer need me at some point in the future and expect me to just disappear - they will need to keep me on for 3 weeks more or just continue paying me for 3 weeks while I go off into the sunset...

Kim_kim

Surfer - are you on a 0 hours type of arrangement?

sangie595

A word of caution here. OP, whatever else is the case, one thing had been very clear in this thread. You are not an employee. You are paid an hourly rate for whatever hours you work. You are not compelled to attend work; and you are not required to give any notice. As you said very early on in this thread, you are on a zero hours contract. Which means you are not entitled to notice pay at all. No matter how many years you work there.

Workers have few employment rights compared to employees. Notice is not one of them. And neither is the right to a written statement of main particulars. So you won't be winning any claims for either of those.

I am also going to point out that this appears to be a small employer. Is that correct? Because, whilst small employers must still adhere to the law, tribunals do permit them a degree of latitude in terms of getting the fine detail of the law correct. Nobody has asked you how much you are paid. Is it more than the NMW / living wage? Because if it is, it is just possible that they are paying you rolled up holiday pay. Simply because they don't show it to be the case doesn't mean that they are not. The law used to allow rolled up holiday pay and in some circumstances still does. And many employers still don't know that has changed. So if all that is going on here is that they don't know, and as soon as it is pointed out to them they have a defence, as a small employer, a tribunal would probably do nothing more than wrap their knuckles and you wouldn't get paid a penny.

So please don't count your chickens before they are hatched, particularly since some of your chickens are ducks! Everything you have said here indicates that any claim to be an employee will fail - you are a worker. And as such you are entitled to holiday pay, but very little more.

surfer9

sangie595 wrote: »

Everything you have said here indicates that any claim to be an employee will fail - you are a worker. And as such you are entitled to holiday pay, but very little more.

I'm glad you clarified that I am classed as what is known as a 'worker'. That is totally fine that I am pretty much only entitled to holiday pay, that's the main 'issue' here, which amounts to the most money that I may or may not be receiving as I should be by law.

Yes I work for a small company and yes I am on a zero hours contract.

1. I receive £7.50 per hour, so £0.30 more than minimum wage.......

2. Some on here have said that I should be receiving approx 12.07% on top of the minimum wage. Which is an extra £0.87p. So I should be getting £8.07 per hour?......

3. We also get 'comfort pay'. This works out as an extra 15mins pay for 1.5 hours work, or an extra 30mins pay for 4 hours work, or an extra 45mins pay for 5 hours work or an extra 1 hours pay for 6 hours work.

So if I calculate those extra minutes.....

Hour 1: £7.50 hourly wage

Hour 2: £7.50 + (25% of one hour (15mins) = £9.38) (average of £8.44)

Hour 3: £7.50 (average of £8.13)

Hour 4: £7.50 + 30% of 1 hour (30mins) = £11.25 (average of £8.44)

Hour 5: £7.50 + 75% of 1 hour (45mins) = £13.13 (average of £8.63)

Hour 6: £7.50 + 100% of 1 hour (60mins) = £15 (average of £8.75)


So I'm guessing looking at this we effectively don't get Holiday Pay as we get no added 12.07% extra on top of the first hour. For each hour after the first hour we do get over 12.07% more than the minimum wage.

Nothing has ever been said to us about Holiday pay / how our pay works.

Generally £7.50 per hour is the hourly wage and we get Comfort Pay after working a certain amount of hours.

My wages over a month average out per hour above the minimum wage + holiday pay of 12.07%. My hours worked divided by my monthly wage.

sangie595

surfer9 wrote: »

Thanks very much for your help. I have not spoken to any management yet as I am not totally sure if I am currently getting Holiday Pay or not. I want to try to work that out before I even consider talking to management.

I did speak to a colleague about holiday pay today and funnily enough he has had another colleague spoke to him about it recently, but they have not raised it with anyone. They feel we are not getting holiday pay, but I need to work that out myself....

I'm glad you clarified that I am classed as what is known as a 'worker'. That is totally fine that I am pretty much only entitled to holiday pay, that's the main 'issue' here, which amounts to the most money that I may or may not be receiving as I should be by law.

Yes I work for a small company and yes I am on a zero hours contract.

1. I receive £7.50 per hour, so £0.30 more than minimum wage.......

2. Some on here have said that I should be receiving approx 12.07% on top of the minimum wage. Which is an extra £0.87p. So I should be getting £8.07 per hour?......

3. We also get 'comfort pay'. This works out as an extra 15mins pay for 1 hours work, or an extra 30mins pay for 4 hours work, or an extra 45mins pay for 5 hours work or an extra 1 hours pay for 6 hours work.

So if I calculate those extra minutes.....

Hour 1: £7.50 hourly wage + (25% of one hour (15mins) = £1.88) Total = £9.38

Hour 2: £7.50 (average of £8.44)

Hour 3: £7.50 (average of £8.13)

Hour 4: £7.50 + 30% of 1 hour (30mins) = £11.25 (average of £8.44)

Hour 5: £7.50 + 75% of 1 hour (45mins) = £13.13 (average of £8.63)

Hour 6: £7.50 + 100% of 1 hour (60mins) = £15 (average of £8.75)


Hourly wage + comfort pay maintains the average wage above the £8.07 (minimum wage + 12.07% for holiday pay).

So would this all legally cover my employer for paying holiday pay?

I was told our 'comfort pay' was to cover any daily breaks we have away from our computers such as tea, toilet, cigarette breaks as we are not paid while away from our computers as we are logged out of the system.


Effectively this is rolled up holiday pay, though not rolled directly up in an hourly wage but a combination of the hourly wage and 'comfort pay'.....

As far as I have read rolled up holiday pay is illegal?

It's not illegal. It may be unlawful, but not always. And as I said, for a small employer, if they have been paying it but didn't realise the law had changed, then the tribunal are unlikely to get overly exercised about it.