How much holiday should I get?

Originally my employer informed me that my holiday entitlement was 30 (contracted hours) x 5.6 x 75% because I do not work a full time week. I have since explained to them that this is not fair or legal and now they are saying my holiday is 30×5.6 = 168. But because they have paid me double time for 40 hours throughout the year for bank holidays I only have 128 hours holiday? My contract states that bank holidays will be paid at double our normal rate and it also states we get holiday 5.6 x our contracted hours which mine says 30 hours per week However, I have averaged more than this and have worked about 1,630 hours for the full year. I am currently on holiday but at risk of not being paid because they are saying I do not have enough holiday hours left. Our holiday year is April to March and I have already taken 117 hours paid holiday. How many hours pay should I be entitled to within this last week? Am I correct in thinking that because I work irregular hours to suit the business I should get 12.07% of my total hours (1630) and that it is entirely their choice to have paid me double time for the bank holidays?

Essentially you are entitled to paid holiday based on the number of hours you work per week. If you go through the calculator on https://www.gov.uk/holiday-entitlement-rights/entitlement and click on the Irregular hours link you will have your holiday entitlement for your number of hours worked. You may need to look at sections 221 and 222 below to see if the previous 12 weeks average needs to be applied. If you have been paid double time on bank holidays, I don’t think that necessarily affects your holiday time off and pay.

You should ask your employer on what grounds under UK Employment Law and the Working Time Directive the employer is entitled to make the deductions proposed. That response can then be checked.

You should carefully check your employment contract and the Staff Handbook to see what they state about holiday. If it is still not clear then you should file a Grievance about any restriction in your rights to holiday and holiday pay.

Annual Leave Law
What is the right?

The Working Time Regulations 1998 (SI 1998/1833) (WTR 1998) entitle all workers to a minimum of 5.6 weeks’ paid annual leave per year (equivalent to 28 days for a full-time employee and a pro-rata amount for a part-time worker).

This note considers statutory annual leave entitlements. However, many workers receive further holiday in addition to their statutory entitlements under their contract of employment. For example, while there is no obligation to also give workers holiday on bank holidays and public holidays, their contracts may entitle them to take these days as holiday in addition to their statutory holiday entitlements.

What are the conditions of entitlement?

Employees and workers (but not the genuinely self-employed) are entitled to statutory annual leave, regardless of length of service (regulation 13, WTR 1998).

However, certain groups of workers are excluded from the provisions relating to paid annual leave under the WTR 1998

Generally, statutory holiday may only be taken in the leave year in respect of which it is due; there is no general right under the WTR 1998 to carry forward unused holiday into the next leave year. However, case law suggests that this rule will not apply in limited circumstances, such as where the employee has not taken all his statutory holiday because of long-term sick leave.

There is no right for the employer to pay the worker in lieu of untaken statutory holiday, except on termination.

How is it exercised?

The WTR 1998 allow either the employer or the worker to give notice of the taking of annual leave by the worker:

– The notice by a worker must be at least twice as many days as the period of annual leave that they are requesting. So a worker who wishes to take five days’ leave must give ten calendar days’ notice before the date on which leave is due to start. The employer may refuse the request by serving a counter-notice. The counter-notice from the employer must be given at least as many calendar days before the proposed leave commences as the number of days which the employer has refused.

– The employer may also give notice ordering a worker to take annual leave on specified dates. Such notice must be at least twice as many days as the period of leave that the worker is being ordered to take.

How much time off may be taken?

All workers are entitled to 5.6 weeks’ statutory annual leave per leave year. Most employers will define the leave year in a contract of employment or other relevant agreement. Workers who start during a leave year will have a pro rata entitlement for the remainder of that leave year.

During the first 12 months of employment, a worker cannot give notice to take more holiday than is deemed to have “accrued”. The leave entitlement accrues at the rate of 1/12 of a full year’s entitlement at the beginning of each month.

Is there a right to payment?

A worker is entitled to be paid during any period of WTR 1998 annual leave at the rate of a week’s pay for each week of leave, calculated in accordance with sections 221 to 224 of the Employment Rights Act 1996 (ERA 1996). There is no cap on the amount of a week’s pay for the purposes of the WTR 1998.

Employment Rights Act 1996

General E+W+S

s221

(1) This section and sections 222 and 223 apply where there are normal working hours for the employee when employed under the contract of employment in force on the calculation date.

(2) Subject to section 222, if the employee’s remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a week’s pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week.

(3) Subject to section 222, if the employee’s remuneration for employment in normal working hours (whether by the hour or week or other period) does vary with the amount of work done in the period, the amount of a week’s pay is the amount of remuneration for the number of normal working hours in a week calculated at the average hourly rate of remuneration payable by the employer to the employee in respect of the period of twelve weeks ending –

(a) where the calculation date is the last day of a week, with that week, and

(b) otherwise, with the last complete week before the calculation date.

(4) In this section references to remuneration varying with the amount of work done includes remuneration which may include any commission or similar payment which varies in amount.

(5) This section is subject to sections 227 and 228.

s222

Remuneration varying according to time of work.E+W+S

(1) This section applies if the employee is required under the contract of employment in force on the calculation date to work during normal working hours on days of the week, or at times of the day, which differ from week to week or over a longer period so that the remuneration payable for, or apportionable to, any week varies according to the incidence of those days or times.

(2) The amount of a week’s pay is the amount of remuneration for the average number of weekly normal working hours at the average hourly rate of remuneration.

(3) For the purposes of subsection (2) –

(a) the average number of weekly hours is calculated by dividing by twelve the total number of the employee’s normal working hours during the relevant period of twelve weeks, and

(b) the average hourly rate of remuneration is the average hourly rate of remuneration payable by the employer to the employee in respect of the relevant period of twelve weeks.

(4) In subsection (3) “the relevant period of twelve weeks” means the period of twelve weeks ending –

(a) where the calculation date is the last day of a week, with that week, and

(b) otherwise, with the last complete week before the calculation date.

(5) This section is subject to sections 227 and 228.

Does the employer have any discretion as to how or when time may be taken?

The employer may require a worker to take, or not to take, holiday on specific dates (regulation 15, WTR 1998; see How is it exercised?, above). This gives the employer, in effect, absolute discretion over when the holiday may be taken within the relevant leave year, provided it gives the requisite notice. A written employment contract or other relevant agreement may vary these notice provisions. In practice, the only limits are that the employer can never have the right to deny the worker’s holiday altogether (even with a payment in lieu), or defer it beyond the end of the leave year.

What are the remedies for breach?

Under the WTR 1998, a worker can bring a claim in an employment tribunal if their employer does not:

– Allow them to take their statutory leave entitlement.

– Pay them in respect of unused leave on termination of employment.

– Pay them a week’s pay during each week of leave.(Regulation 30, WTR 1998.)

Claims must be brought within three months beginning with the date on which it is alleged that the exercise of the right should have been permitted. This may be extended if the employment tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the three-month time limit. It can also be extended under the Acas early conciliation procedure, introduced on 6 April 2014.

Workers may also bring a deduction from wages claim in respect of unpaid holiday pay. The time limit provisions are more generous, as claims for a series of deductions can be amalgamated and brought within three months of the last deduction in a series.

Dismissal of an employee because they have asserted a right under the WTR 1998 will be automatically unfair. Employees and workers are protected from suffering a detriment during employment on the grounds that they refused to forgo their annual leave, brought proceedings to enforce a right under the WTR 1998, or alleged in good faith that their employer had infringed such a right.



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