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I have been employed for three years on a part-time contract. For the last 2.5 years I have been consistently working full-time hours. I have asked several times for my contract to reflect this, but nothing has been done. Do I have any claim to common practice and can I get my contract made up to full time, including holiday pay?
Firstly, I assume you are being paid for your additional work as you have been undergoing these hours for two and a half years. It is difficult to make an accurate assessment without seeing your contract, particularly in relation to the holiday clause, but generally your possible routes are as follows:
Your main potential claim would be in relation to holiday pay under the Working Time Regulations (the “Regulations”) or as Unlawful Deduction from Wages under the Employment Rights Act 1996 (“ERA”). Your minimum statutory allowance is four weeks’ holiday per year plus bank holiday, totalling 28 days. Your employer may provide more holiday entitlement than the minimum, so check with other colleagues at your level if you aren’t sure.
The issue with presenting a claim for non-payment of holiday pay under the Regulations is the time limits. You are to make a claim within three months of the date on which your holiday pay should have been paid. If you have been doing full time hours for 2 and a half years without receiving the representative holiday entitlement, then, unfortunately your claim under the Regulations, on the face of it, will be out of time, unless a Tribunal Judge decides otherwise.
Therefore a more effective route would be under ERA which allows you to bring a claim within three months of the last in a series of deductions. If you have been denied proper holiday entitlement for the last two and a half years, this would be a series of deductions from each monthly wage. Even if this was rectified in this month’s wage, you would still be able to bring a claim within three months of the last deduction. Under this claim, if you are successful, the Tribunal will make a declaration to that effect and order the employer to pay the amount unlawfully deducted i.e. all holiday pay owed to you.
FYI a further need to know your correct entitlement is if your employment ever terminated, for example, by reason of redundancy, as you are entitled to payment in lieu of any unused holiday on leaving.
Written statement of particulars
When an employee begins work, they are entitled to have written confirmation of their terms and conditions within two months of starting. It appears that this was given to you when you first started your job, which was then part time, either via an offer letter or within your contract itself. This statement sets out your hours, pay, holiday entitlement and other rights and benefits. However no statement has been given in relation to your new terms. A lack of written statement of particulars is not a claim in itself, but if tagged onto another claim as per above, and was successful, it would increase your compensation by two to four weeks’ pay.
In the first instance, I would advise you make a formal request in writing for clarification of what your terms and conditions are. You could outline what you think you are entitled to with regards to pay, holiday pay and other benefits. For example if your contract gives you 16 or 17 days holiday per year, as calculated on a three day week instead of 28 days holiday for full time members of staff, you should specify in your letter that you expect 28 days holiday. You should calculate your other benefits in this way too, for example sick pay.
If this is not successful, you can raise an official grievance in relation to pro-rated holiday entitlement in line with your colleagues who are working full time and written statement of terms.
If this route is not successful then you could bring a claim as outlined above. Please note you do not have to resign to do so – claims can be brought against employers whist still in their employment.
Jane Manville helped in the preparation of this answer.