When overtime becomes normal working hours

Piggywinkle

I currently work as admin support in a school. When I started the job, I was contracted to work 14 hours per week over three days. However, the role snowballed and I was doing things above and beyond my job spec and couldn't get everything done in 14 hours. My manager made me put together a document outlining why I needed extra hours in order to get my contract changed to 18 hours over 3 days. However, changes at the school meant that any contract changes weren't being approved at that time. I was instead advised to submit overtime sheets at the end of every month to our finance office.

I have now been doing this for a year. My manager left and my new manager has said to just continue with how I'm going as the changes in how the school is run means no additional expenditure is being approved. However, due to working term-time and receiving averaged salary payments accordingly, I came to my August payslip (where I wasn't claiming for extra hours due to summer hols) and was paid according to my contracted 14 hours and realised that actually, this wasn't okay. I should be salaried according to my 18 hours surely?

Doing a bit of research gives me this:
https://www.xperthr.co.uk/faq/when-does-overtime-have-to-be-included-in-holiday-pay/156145/

and this:
http://www.acas.org.uk/index.aspx?articleid=4249

Which makes me think that, now 18 hours is my normal pattern of working, I'm legally entitled for it to be reflected in my holiday pay and therefore salaried pay. I hope I'm making sense! Has anyone come across this before and do I have anything to move forward with here? TIA

sangie595

You are correct. Your holiday pay should be based on the regular overtime hours. But yes, it doesn't happen automatically or it would have. You will need to raise this with your manager, and if necessary begin a grievance, as your are owed back pay as well as any additional party going forward. Although, and I will just mention this, they might immediately stop the overtime. So that is a risk you must decide to take.

Are you in a union?

Piggywinkle

sangie595 wrote: »

You are correct. Your holiday pay should be based on the regular overtime hours. But yes, it doesn't happen automatically or it would have. You will need to raise this with your manager, and if necessary begin a grievance, as your are owed back pay as well as any additional party going forward. Although, and I will just mention this, they might immediately stop the overtime. So that is a risk you must decide to take.

Are you in a union?

I'm not but may join one before I decide to bring this to my manager's attention! Thanks Sangie.

zagfles

My wife does basically the same, and she gets holiday pay added to every overtime claim automatically, so she doesn't lose out. Are you paid by the council? Or directly by the school?

Have you checked if the overtime pay rate includes a holiday pay element even if not specifically stated (on my wife's it's separately itemised).

Piggywinkle

zagfles wrote: »

My wife does basically the same, and she gets holiday pay added to every overtime claim automatically, so she doesn't lose out. Are you paid by the council? Or directly by the school?

Have you checked if the overtime pay rate includes a holiday pay element even if not specifically stated (on my wife's it's separately itemised).

No, it's marked as overtime on my payslip but I'm paid at my basic hourly rate for any 'extra' hours I've done. We used to be council, but are now academised so it's a third party payroll service now.

sangie595

Piggywinkle wrote: »

I'm not but may join one before I decide to bring this to my manager's attention! Thanks Sangie.

Too late. Unions won't support or represent people who join when they already have a problem. You would only have "cover" from the next issue. A rep might be kind and adhere to help you out, but they don't have to. Think of it like insurance - which company will take you on after the house burnt down? That's not a reason not to join - because if you put it off, you will never think about it again until the next time you need one! But just warning you that it probably won't help right now with this.

getmore4less

Piggywinkle wrote: »

No, it's marked as overtime on my payslip but I'm paid at my basic hourly rate for any 'extra' hours I've done. We used to be council, but are now academic so it's a third party payroll service now.

If your base is averaged over the year and if the overtime is added at the full rate(not averaged over the year) each pay period then there is a complication in that the School holidays are not all paid holidays, meaning not every week of school holidays get extra holiday pay.

There are a number of ways to do the calculations but the easiest for everyone is to have the holiday pay for overtime paid at the same time as the overtime.

CashlessCaruna

I have been doing a bit of research around this issue for my union branch.

Most famous UK case around this were the 69,000 John Lewis and Waitrose workers who were compensated £40 million after the firm realised that overtime and Sunday working hadn't been calculated into their annual leave pay.

Under the Working Time Regulations 1998 ("WTR"), workers are entitled to statutory minimum holiday of 5.6 weeks (28 days for an employee who works five days a week), inclusive of bank holidays.
Workers should receive their usual/normal/average remuneration while on this leave.
To date, case law has established that contractual overtime, non-guaranteed overtime and commission, must be included in the holiday pay calculation.

From .gov.uk (search holiday pay)
Holiday pay: the basics
Workers are entitled to a week’s pay for each week of leave they take.
A week’s pay is worked out according to the kind of hours someone works and how they’re paid for the hours. This includes full-time, part-time and casual workers.

ACAS Says:
Holiday Pay
You must be paid the same amount when you’re on holiday (annual leave) as you’re paid when you’re at work – whatever your working pattern.
Holiday pay must include overtime, bonus or commission if these usually make up part of your weekly pay.
Overtime
All types of overtime you usually work (including voluntary) must be included when calculating holiday pay. If you only work overtime occasionally it doesn’t need to be included.

So in essence, holiday pay should be your average weekly wage and not your contracted hours.

As a term time only worker your situation is slightly more complicated because presumably you dont have a 52 week contract, however your overtime should be included in your annual leave payments while on annual leave. As stated above your time off during the summer may not form part of your annual leave entitlement.

You wont be entitled to representation from a Trade Union on this matter if you are not already a member. Most unions have a 4 week rule whereby people must be members of the union for at least 4 weeks prior to the issue/occurance they need help with.
Regardless you should join the union. Every worker should be in one.

You should still raise the issue with your employer however. Write a letter, including the ACAS and .gov.uk references above. If they have not been including your overtime in your holiday pay, that is potentially an unlawful deduction of wages ie wage theft.

Good luck

sangie595

CashlessCaruna wrote: »

I have been doing a bit of research around this issue for my union branch.

Most famous UK case around this were the 69,000 John Lewis and Waitrose workers who were compensated £40 million after the firm realised that overtime and Sunday working hadn't been calculated into their annual leave pay.

Under the Working Time Regulations 1998 ("WTR"), workers are entitled to statutory minimum holiday of 5.6 weeks (28 days for an employee who works five days a week), inclusive of bank holidays.
Workers should receive their usual/normal/average remuneration while on this leave.
To date, case law has established that contractual overtime, non-guaranteed overtime and commission, must be included in the holiday pay calculation.

From .gov.uk (search holiday pay)
Holiday pay: the basics
Workers are entitled to a week’s pay for each week of leave they take.
A week’s pay is worked out according to the kind of hours someone works and how they’re paid for the hours. This includes full-time, part-time and casual workers.

ACAS Says:
Holiday Pay
You must be paid the same amount when you’re on holiday (annual leave) as you’re paid when you’re at work – whatever your working pattern.
Holiday pay must include overtime, bonus or commission if these usually make up part of your weekly pay.
Overtime
All types of overtime you usually work (including voluntary) must be included when calculating holiday pay. If you only work overtime occasionally it doesn’t need to be included.

So in essence, holiday pay should be your average weekly wage and not your contracted hours.

As a term time only worker your situation is slightly more complicated because presumably you dont have a 52 week contract, however your overtime should be included in your annual leave payments while on annual leave. As stated above your time off during the summer may not form part of your annual leave entitlement.

You wont be entitled to representation from a Trade Union on this matter if you are not already a member. Most unions have a 4 week rule whereby people must be members of the union for at least 4 weeks prior to the issue/occurance they need help with.
Regardless you should join the union. Every worker should be in one.

You should still raise the issue with your employer however. Write a letter, including the ACAS and .gov.uk references above. If they have not been including your overtime in your holiday pay, that is potentially an unlawful deduction of wages ie wage theft.

Good luck

I don't have time to make all the necessary corrections to this, but please advise your union branch that they need to consult a full time official to correct this over simplified version before somebody makes a fatal mistake in the advice they give. There are a number of contextual errors and omissions.

Undervalued

CashlessCaruna wrote: »

ACAS Says:.....

.....All types of overtime you usually work (including voluntary) must be included when calculating holiday pay. If you only work overtime occasionally it doesn’t need to be included.

Typical wishy washy ACAS "advice" there!

Defining "usually" and "occasionally" would be a good start!

zagfles

sangie595 wrote: »

Too late. Unions won't support or represent people who join when they already have a problem. You would only have "cover" from the next issue. A rep might be kind and adhere to help you out, but they don't have to. Think of it like insurance - which company will take you on after the house burnt down? That's not a reason not to join - because if you put it off, you will never think about it again until the next time you need one! But just warning you that it probably won't help right now with this.

Our union has always helped new joiners straight away even with existing issues. They won't legally represent new members for existing issues, but the reps are willing to help new members with existing issues straight away. They use this sort of thing as a recruiting tool (although I've argued that it can be counterproductive - people will leave joining till they have an issue).