Furlough Holiday Pay

declan199210

Hi everyone, not quite sure where to post this but as it’s furlough related thought I’d post it here.

Now I’m currently on furlough and have been since it has been in force.

Im currently on the allotted 2 weeks annual holiday we are forced to take at this time of year.

i work in a job were we are contracted to 37 hours. Before furlough we was on a 4 shift pattern that rotated every week and my aligned work group is currently on a 3 shift rotating pattern if that matters at all. So 1/3 of the weeks due to the shift premium on that we get paid more than the other two and 2/4 on the 4 shift we get paid different.

now my question is as I have received my holiday pay this week, my holiday pay has two parts. One for 37 hours paid at basic rate and another for holiday premium that is worked on a 12 week average of shift premium paid.

now my question is shouldn’t that average of shift premium be done over 52 weeks and if not should the 12 weeks be taken as an average over the last 12 weeks worked rather than the last 12 weeks as they have been on furlough.

My company’s stance is that it’s based on the last 12.

Jeremy535897

It sounds like you are a not a fixed rate employee, so holiday pay should be based on the wages for the last 52 weeks worked. See https://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19

declan199210

Jeremy535897 said:

It sounds like you are a not a fixed rate employee, so holiday pay should be based on the wages for the last 52 weeks worked. See https://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19

That was what I found and quoted to my employer however they have disputed this and said it’s based upon 12 weeks.

they are a multi billion pound business I should also mention.

Jeremy535897

declan199210 said:

Jeremy535897 said:

It sounds like you are a not a fixed rate employee, so holiday pay should be based on the wages for the last 52 weeks worked. See https://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19

That was what I found and quoted to my employer however they have disputed this and said it’s based upon 12 weeks.

they are a multi billion pound business I should also mention.

Even multi billion pound businesses can be out of date. The 12 week period increased to 52 weeks from 6 April 2020. See 
https://www.gov.uk/government/publications/calculating-holiday-pay-for-workers-without-fixed-hours-or-pay/calculating-holiday-pay-for-workers-without-fixed-hours-or-pay--2
"How the law has changed as of 6 April 2020

The law on holiday pay changed as of 6 April 2020. Employers must follow the new law.

Increasing the reference period

From 6 April, the reference period increased. Previously, where a worker has variable pay or hours, their holiday pay was calculated using an average from the last 12 weeks in which they worked, and thus earned pay. This reference period has been increased to 52 weeks.

If a worker has not been in employment for long enough to build up 52 weeks’ worth of pay data, their employer should use however many complete weeks of data they have. For example, if a worker has been with their employer for 26 complete weeks, that is what the employer should use."

declan199210

Jeremy535897 said:

declan199210 said:

Jeremy535897 said:

It sounds like you are a not a fixed rate employee, so holiday pay should be based on the wages for the last 52 weeks worked. See https://www.gov.uk/guidance/holiday-entitlement-and-pay-during-coronavirus-covid-19

That was what I found and quoted to my employer however they have disputed this and said it’s based upon 12 weeks.

they are a multi billion pound business I should also mention.

Even multi billion pound businesses can be out of date. The 12 week period increased to 52 weeks from 6 April 2020. See 
https://www.gov.uk/government/publications/calculating-holiday-pay-for-workers-without-fixed-hours-or-pay/calculating-holiday-pay-for-workers-without-fixed-hours-or-pay--2
"How the law has changed as of 6 April 2020

The law on holiday pay changed as of 6 April 2020. Employers must follow the new law.

Increasing the reference period

From 6 April, the reference period increased. Previously, where a worker has variable pay or hours, their holiday pay was calculated using an average from the last 12 weeks in which they worked, and thus earned pay. This reference period has been increased to 52 weeks.

If a worker has not been in employment for long enough to build up 52 weeks’ worth of pay data, their employer should use however many complete weeks of data they have. For example, if a worker has been with their employer for 26 complete weeks, that is what the employer should use."

I quoted the same to them however they came back with that we are workers with fixed hours/pay.

we may work 36 hours weekly but are contracted to 37. We are not paid the same gross/net pay each and every week as we work shifts with different shift allowance before we was placed on furlough obviously.

i contacted Acas and they came to the same conclusion as myself that it is based upon 52 weeks.

unsure how to proceed with it at this moment in time 

Jeremy535897

If you are working fixed hours what is the relevance of the 12 week period? That only applies to variable pay up to 5 April 2020. It is irrelevant to fixed pay and always was irrelevant.

Jeremy535897

I did wonder whether, due to the irregular shift premia, you effectively receive the same pay every 12 weeks, so that was why they looked at a 12 week period, but I don't think that is what your OP says. In any event, the overriding EU case law (at least for 20 out of the 28 days statutory holiday) says you should not be worse off on holiday than working. Furlough is not working, so you have to look back to the time you were working to calculate holiday pay.

declan199210

They decided to come back with the following as there explanation for me being incorrect.

https://www.citizensadvice.org.uk/work/rights-at-work/holidays-and-holiday-pay1/check-youve-got-the-right-amount-of-holiday-pay/

Jeremy535897

declan199210 said:

They decided to come back with the following as there explanation for me being incorrect.

https://www.citizensadvice.org.uk/work/rights-at-work/holidays-and-holiday-pay1/check-youve-got-the-right-amount-of-holiday-pay/

Well, if they could be bothered to scroll to the bottom, they would see that page was last reviewed on 26 July 2019. The law changed on this, as I explained above, from 6 April 2020.

declan199210

Jeremy535897 said:

declan199210 said:

They decided to come back with the following as there explanation for me being incorrect.

https://www.citizensadvice.org.uk/work/rights-at-work/holidays-and-holiday-pay1/check-youve-got-the-right-amount-of-holiday-pay/

Well, if they could be bothered to scroll to the bottom, they would see that page was last reviewed on 26 July 2019. The law changed on this, as I explained above, from 6 April 2020.

That was my exact reply to them , in nicer words of course 

my union is of course less than helpful in this mattee

Jeremy535897

declan199210 said:

Jeremy535897 said:

declan199210 said:

They decided to come back with the following as there explanation for me being incorrect.

https://www.citizensadvice.org.uk/work/rights-at-work/holidays-and-holiday-pay1/check-youve-got-the-right-amount-of-holiday-pay/

Well, if they could be bothered to scroll to the bottom, they would see that page was last reviewed on 26 July 2019. The law changed on this, as I explained above, from 6 April 2020.

That was my exact reply to them , in nicer words of course 

my union is of course less than helpful in this mattee

It might be worth speaking to ACAS, but in this case they may follow the line the union takes. You pay your dues to the union. This is a cut and dried case of employer error. Why won't they do anything?