Holiday Entitlement !

smallzoo2

My daughter has worked for a care company ( I can give the name if necessary ) whose year runs from September to September

She started end of November 2020 on the bank and worked on average 3 days a week 10hrs a day which then became part-time around May 2021 but they gave her no contract. She was then doing about 3-4 days a week ( 10hr days ). 

She was told on the 25th May all employees were entitled to 5 weeks paid holiday and based on a 2 day week she was entitled to 11 days paid holiday. During that time she only took 2 or 3 days holiday.

At the beginning of August she asked for a week off in September. She was told you could take 8 more days before 21st August this was only based on working 2 days a week. She worked at least 3 days a week. She asked again on the 31st August about the 8 days in September if that was ok. She remembers hem calling her and saying it is fine. At the end of August she went back on the bank again and now is unlikely to work for them again

They are now emailing her in an aggressive manor saying if she was to to take the 8 days holiday from last year this year she would have to work for at least 3 months to accrue those days ie she has lost the 8 days from last year !

They did not at any stage mention she could not carry the days over OR if she was entitled to pay

How do I resolve this for her

Thanks

TBagpuss

She will need to resolve it for herself.
In the first instance, i think she needs to sit down and work out exactly what her entitlement is, for the previous and current holiday year, and how much she has taken.

depending on her contract, she may have lost any contractual leave (i.e. anything over the statutory minimum) but she should not have lost her statutory entitlement.

It's complicated by the changes to her hours - but I think the starting point is for her to ask them to set out what they believe her entitlement is, how they have calculate it, and the basis on which they are saying that she cannot carry forward or be paid out for last years holiday.  Normally you would be expected to take your statutory entitlement in the correct year, but there are provisions for allowing it to be carried over due to Covid, and I think the employer ought to have told her to takeit before the end if the year if they were not willing for it to be carried over.

If she is in a union sheshould speak to them for help. if not, then ACAS might be useful as a starting point. 

RS2021

Hi,

 

From where I see it, there are two components to this – one pertains to when your daughter was working as a bank staff and one when she switched to part-time employment.

 For her time as a bank staff: 

1. She needs to establish her average weekly hours, from the week she joined until the last week she worked as a bank staff. 
2. Establish her weekly pay by multiplying her weekly hours with her hourly rate of pay
3. Multiply her weekly pay with 5.6 – this should give her total holiday pay for the period she worked as a bank staff (5.6 because 5.6 weeks constitute the statutory holiday entitlement). See if her bank staff employment terms (which, I am sure the company never supplied her) offer any contractual holiday. If they do, then the 5.6 number may need to be adjusted accordingly. 5.6 is the bare minimum.

It is likely that the company paid her rolled up holiday pay of 12.07% over her earnings as a bank staff. She needs to establish whether that is more or less than the amount found by the above calculation. 

If it is more, it is well and good; if it is less, then she has a case to request the difference be paid.

For her time as a part-time employee: 

1. From 6 April 2020, it is the legal right of every employee and worker to receive their contract no later than their first day at work. She should have received a contract for her bank role and another one for her part-time employment role.
2. It is likely that the company calculates holiday entitlement of their part-time employees based on their weekly hours. If she is on fixed hours per week, it is straightforward. But, if she is on variable hours, then, she again needs to establish the number of hours she worked on average (including any overtime) in a week from 1 May 2021, when, presumably she started working as a part-time employee, and use that to calculate her holiday entitlement.
3. A rough calculation based on 30 hours/week from 1 May 21 until 31 Aug 21 (end of the holiday year for this company), suggests 10 days’ entitlement. I suspect she may have done more hours on average to obtain 11 days’ entitlement.

As the previous poster said, if your daughter failed to take her holiday because of COVID-19, that is, she was isolating or too sick to take her holiday, or couldn’t take holiday because she had to continue working as a result of staff shortage caused by the pandemic, there is provision for her to carry forward her untaken holiday, up to 20 days, into the new holiday year (Sep 21 for her company).

Also, it seems the company awards more holiday than the legal minimum of 5.6 weeks (you mentioned 25 days, that plus 8 bank holidays is 33 days or 6.6 weeks). They should mention in their contract (which, of course, they never issued to your daughter) how many days holiday one is allowed to carry over to the next year.

Under the circumstances, as the previous poster said, it is important that she works out her entitlement and how much she received. She also needs to ask for the written terms of her engagement (as a bank worker now) as it is her day 1 right.

Do bear in mind that the limitation period for bringing claims for underpaid holiday is three months. In this case it is three months from the end of the last holiday year, i.e. 31 August 21. 

It may indeed be helpful to contact ACAS on their freephone at 0300 123 1100 for advice once she has all the above information. 

Thank you.

Brie

Get her to check her payslips throughout.  In some businesses holiday pay is added for those on temp or bank contracts based on the amount of time worked in that pay period.  The result is then when the individual takes time off they don't get paid as would happen for a standard employment contract.

From my experience of care companies, as a customer rather than employee, is that their business practices can be a little slapdash.  That has probably not improved over the last couple of years.   So I'm not surprised that their "HR department" isn't doing a grand job of managing things.

I think that the last time I received a bill for MiL's care was about 10 months back.  I do know how often someone comes and what the rate is so I go ahead and make payments so that we don't fall into arrears.  I've asked a couple of times for an up to date statement of account but have never received one.  If the carer wasn't as excellent as the one that comes I might grumble or change provider but things are working well so I'll just let things tick along.

smallzoo2

Thanks so much for all the detailed replies

I am going to 

1: Ask for details of any signed contract sent / emailed to my daughter including date(s)
2: Get a copy of every payslip from April 2020

Once I receive this , if its not obvious what they are doing I will contact ACAS before end of November as per the 3 month rule

Thanks again

Undervalued

smallzoo2 said:

Thanks so much for all the detailed replies

I am going to 

1: Ask for details of any signed contract sent / emailed to my daughter including date(s)
2: Get a copy of every payslip from April 2020

Once I receive this , if its not obvious what they are doing I will contact ACAS before end of November as per the 3 month rule

Thanks again

If her claim is simply for unpaid wages / holiday etc it can also be brought in the small claims court / county court. There the time limit is six years (five in Scotland). It is only an employment tribunal where you (normally) have to start a claim within three months.

Also, you can't ask them for anything. Your daughter will have to do that. Well you can ask but they shouldn't respond!

General_Grant

Undervalued said:

smallzoo2 said:

Thanks so much for all the detailed replies

I am going to 

1: Ask for details of any signed contract sent / emailed to my daughter including date(s)
2: Get a copy of every payslip from April 2020

Once I receive this , if its not obvious what they are doing I will contact ACAS before end of November as per the 3 month rule

Thanks again

If her claim is simply for unpaid wages / holiday etc it can also be brought in the small claims court / county court. There the time limit is six years (five in Scotland). It is only an employment tribunal where you (normally) have to start a claim within three months.

Also, you can't ask them for anything. Your daughter will have to do that. Well you can ask but they shouldn't respond!

Agree that it should be your grown up daughter who deals with her employer.

Also she should check what the employer is saying their holiday entitlement is.  By law they are entitled to 5.6 weeks, not 5 weeks.