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Rights to TOIL for working on bank holidays
I am a part-time worker in an area which only operates evenings, nights, weekends and public holidays. I am contracted to work 20 hours per week on what is known as a flexible contract. There are two other staff members in our unit with the same contract. I have no set shifts and I am allocated shifts 5 or 6 weeks in advance relative to service need and staffing requirements.
My annual leave allowance is made up of two elements, a core element based on service and an element in lieu of public holidays, both pro-rata to the full-time equivalent. My managers roster me to work virtually every public holiday, usually an eight or 10-hour shift. My issue is that I have not been allocated the appropriate compensatory TOIL as per my contract. Policy guidelines say staff required to work or to be on-call on a general public holiday are entitled to time off in lieu at plain time rate in addition to the appropriate payment for the duties undertaken. Staff who are required to work more than 60 hours on general public holidays, in their personal leave year, will receive TOIL at plain time rate for all of the hours worked and the appropriate payment for all of the hours worked. So what are my rights?
Thank you for setting out your issue; which is, in short, that although you have worked on public holidays and although you have received the enhanced payments to which you are entitled when working these days, you have not received the appropriate time off in lieu, to which you are also entitled under your contract of employment.
You have pointed out policy guidelines. If HR has confirmed to you that working on public holidays is dealt with in accordance with that policy, then my advice is that you return to HR to (1)thank them for the clarification regarding the treatment of public holidays and (2)request on this basis that arrangements for you to take the time off in lieu that you have accrued be made in accordance with the policy.
If this does not resolve matters, you may wish to raise a formal grievance in this regard.
There is a possibility that you have a valid claim for breach of contract – i.e. failure to provide you with a benefit to which you are entitled to under your contract which can be pursued in the County Court or the Employment Tribunal, subject to strict time limits on which you should seek legal advice if you are unable to resolve matters.
If you feel you are being put at a detriment because you are a part-time worker – i.e. your full-time counterparts all get TOIL as well as the enhanced payments – then you could raise this as a potential breach of the Part Time Workers Regulations. The treatment may also be discriminatory on the grounds of sex if you are female and your colleagues are male. My advice is that you raise these as possible issues within a grievance if matters proceed that far. If a grievance does not resolve matters, it may be that you consider resigning in response to this breach and claiming constructive unfair dismissal (NB however please seek legal advice on this point before taking this step).
*Lucy Flynn has assisted in answering this question.
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