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Should my annual leave be pro-rata’d?
I work four days a week (30 hours). We have flexible holidays in that any bank holidays including Xmas break must be taken from our holiday allowance. In principal the office is never closed. I also work my hours over five days, so don’t have one specific day off a week, just shorter hours.
My full-time colleagues get 26 days pro rata plus statutory bank holidays amounting to 35 days. I get 21 days pro rata plus bank holidays. My employer used to give me the same amount of bank holidays as my full-time colleagues, non pro rata which usually equated to 30 days holiday. Since last year with a change to the way in which holidays were logged, he advised I had 28 days in total which is a pro rata amount of the 35 days my colleagues get. I queried this, but he didn’t respond and I decided to leave it. I have a review coming up and with no pay rise in sight I was going to ask for those extra two days back as his emails of how he calculated our holidays do not equate to the amount I get (by his calculations I should get 30 days – 21 days contract and nine statutory). However, am I entitled to full bank holidays or are these pro rata?
You have raised a query with regard to your holiday entitlement as a part-time worker. Your question is somewhat confusing in that, in the first instance you refer to working four days a week (30 hours), but you then state that you work your hours over five days so that you do not have one specific day off a week, just shorter hours. Consequently we have responded to your question based on the assumption that, whilst you work fewer hours, you do in fact work over a five-day period in each working week.
You do not make reference to whether the office is open at weekends or whether the normal working week is Monday to Friday. Assuming the latter to be the case, then given the fact that you work the same number of days per week as your colleagues, then there is no justification as to you receiving pro rata holiday entitlement. We cannot understand if all employees work five days a week, why your entitlement has been pro-rated. A recent Court of Appeal case has found that, regarding domestic law, attempting to build a pro rating requirement on a system of accrual into the Working Time Regulations 1998 would not be an exercise in statutory construction, but the substitution of an entirely different scheme. A calculation exercise required by Regulation 16 of the Working Time Regulations 1998, which involves identifying a week’s pay and multiplying it by 5.6 weeks, is straightforward and should be followed.
In terms of statutory entitlement therefore it is a question of calculating what your week’s pay is and multiplying that by 5.6. However, this does not necessarily deal with your contractual entitlement and it is impossible to advise on the bank holiday situation which would appear to be a normal working day without sight of your Contract of Employment in order to assess how it is proposed bank holidays are dealt with pursuant to the contract.
I strongly advise that you obtain legal advice as soon as possible whereby the person advising is in receipt of the full set of facts and can have sight of your contract.
*Lucy Flynn assisted in answering this question.
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