Agency Holiday Pay

shadddaz

Hi all

I have not had many problems with agencies until now

I started doing some work for an agency back in Oct only did about 6 or 7 weeks with them as they was messing about with my pay rates so I moved on anyway i dont think they have paid me correct

let me explain

I did a total of 313.5 hours with the agency now according to the calculator on the .GOV site i should get 37.85 hours (37 hours 51 mins) holiday and I have calculated the pay rate as £11.20 per hour average (the agency seem to agree sort of with this based on what they did pay)

what I got paid was 13.94 hours @ £11.19 = £155.99

based on my calculations i should have got something close to £423.92

the agency have now gone very quiet on me with no reasons for what they paid me I just keep getting fobbed off with we will pass this on to the manager

so what steps can I take to deal with this and hopefully get the pay I believe I am missing and if you are wondering about the pay rate I am a HGV driver

Thank for any advice

Les79

Hmm, I have just used the calculator and come up with "34 hours and 32 minutes holiday" but mine wasn't as accurate as yours (I used 50 hour weeks and guessed the start + leave dates)...


So it does appear that you may have a point here!


I would suggest speaking to ACAS to see if they have any useful information to provide. You could also potentially take them to small claims court to reclaim the missing money.

SummerSunshine2

You are correct in your calculation. Stat holiday is 12.07%

SummerSunshine2

You need to write a letter/email, and then contact ACAS. Has it been 3 months? As that’s the limit.
I would call them Monday.

Comms69

SummerSunshine2 wrote: »

You need to write a letter/email, and then contact ACAS. Has it been 3 months? As that’s the limit.
I would call them Monday.

What three month limit?

Ja7188

What three month limit?

Presumably it's a reference to the time limit associated with an employment tribunal...

the agency have now gone very quiet on me with no reasons for what they paid me I just keep getting fobbed off with we will pass this on to the manager

Obviously you've worked out the figures and they look correct - so I assume you have documented these and sent them to the agency. In what way have they "gone quiet" - are they ignoring written communication?

System

I think I know what the problem is. You cannot use the current calculator to calculate holiday pay due prior to employment ending before 17th December as the government changed the way it was calculated for agency workers and "gig economy" workers.

It used to be the case prior to 17th December that when your hours were not regular employers were entitled to calculate them using the average of the previous 12 weeks where any pay was due and that is how they have calculated it. Calculate what the total you were paid by them was over the period you were there, divide by 12 and that's probably what I reckon you got paid.

Good news going forward is that this is one of the things that has being fixed by the government with their recently announced amendments to the AWR. Holiday pay will be calculated based on 52 weeks, not 12 weeks, so that seasonal workers are no longer disadvantaged and also the Swedish Derogation is being rescinded too. Unfortunately yet again in regards to the SD the government have missed the point and if you're on a "pay between assigments contract" as I have been to get around the SD, you're not entitled to parity pay but they at least now must pay you 50% of your highest week's wage with a client instead of just 8hrs when there's no work.

Unfortunately the bad news for you is that you were employed by the agency and ended your employment with them before the change in December so the holiday pay only had to be calculated under the old rules so you need to take what you earned in total with them over those several weeks, divide by 12 and that's the holiday pay due.

Ja7188

It used to be the case prior to 17th December that when your hours were not regular employers were entitled to calculate them using the average of the previous 12 weeks where any pay was due and that is how they have calculated it. Calculate what the total you were paid by them was over the period you were there, divide by 12 and that's probably what I reckon you got paid.

How would the division by 12 work in practice, given that the OP only worked there for 6-7 weeks?

System

Ja7188 wrote: »

How would the division by 12 work in practice, given that the OP only worked there for 6-7 weeks?

As I posted, total amount paid divided by 12 as there aren't any previous weeks in their employment to use to make up. Sucks but at least the government have fixed that unlike their half assed attempt at rescinding the Swedish Derogation of the AWR where they've simply replaced one bad bit of legislation with a slightly less bad one that misses the entire point of rescinding the derogation in the first place.

Ja7188

As I posted, total amount paid divided by 12 as there aren't any previous weeks in their employment to use to make up.

You did refer to 12 weeks but what wasn't clear was what would happen if there weren't 12 weeks to take the average of - and if I'm interpreting correctly, your calculation is as follows...

Holiday hours accrued per week = (313.5/12) * 0.1207 = 3.1532875
Total holiday hours accrued = 6 * 3.1532875 = 18.919725 (assuming they worked there for 6 weeks)

So unless I've got this wrong, the OP is still missing about 5 hours' pay...?

SummerSunshine2

It’s 12.07%