Holiday FAQ's

 

« More hours worked than contracted »

A worker was contracted for 18 hours a week and to fill in for holidays and illness, for the last six months they have worked over 26 hours a week. Are the holidays based on 18 or 26 hours?

If the worked hours each week or the monthly salary vary from period to period or the hours worked differ from contracted hours the rate at which to pay a period of holiday is an average of the preceding 12 weeks (3 months for monthly paid staff) gross pay. The gross pay used to calculate the average should not include commissions, bonus, expenses etc but at the same time should reflect a 'normal' wage for the period.

« Self employed entitlement »

What entitlements do the self employed have in relation to holiday pay?

A truly self employed person has no employer and therefore has no statutory holiday entitlement. A self employed person can dictate their own hours and days of work so can take 'holidays' as and when they please. In reality the person or company to whom the service is being provided would be advised of the 'holiday' in advance so that the work schedule was correct (and that they came back to some work). Within the service contract a provision for 'holiday pay' may be included but would more than likely be construed by HMRC as an indicator that the person was an employee. CIS (Construction Industry Scheme) workers, although technically self employed, are for the purposes of holidays and in some other area's, treated as an employee and therefore are entitled to four weeks plus bank holidays (2010) paid holiday a year. In the Revenue's ever increasing effort to get everyone classed as an employee (to increase their NI revenue) it would not come as a surprise to see legislation being introduced that extended the already far reaching powers of IR35.

« Bank holiday entitlement »

What is the procedure for paying for or the working of bank holidays?

Rules introduced in 2007 now make bank holidays part of the statutory holiday entitlement. The holiday does not have to be taken on the actual bank holiday day but a day per bank holiday has to be included as part of the holiday entitlement. To make the transition smoother only half of the bank holidays (4 days) were be added to the statutory holiday entitlement up to April 2009, thereafter the full 8 daysl became the entitlement. As these rules are not currently (2010) part of the Working Time Regulations, which enact the holiday rules, the days holiday for a bank holiday can either be taken off or be paid up, so for example, if an employee worked the bank holiday they could be paid double time for it instead of taking a day off and the rules would be satisfied. The number of extra days holiday given for the bank holidays is pro rata based on a five day week (even if the employee workers either six or seven days a week), for example, if an employee works three days a week their extra days would be three fifths of eight days. Contractual holiday entitlements must either be equal to or exceed the statutory holidays.

« Carried over entitlement »

Is an employee entitled to holiday pay accrued in the first year of employment (5 years ago) but not taken at the current rate of pay?

Unless it is stated in the contract of employment that untaken accrued holidays can be carried over from a previous holiday year any untaken holiday entitlement is lost at the end of the holiday year. There is no statutory entitlement to carry over untaken holidays to the new holiday year. If the contract allows carrying over then any untaken holiday entitlement will always be paid at the current rate as the days carried over become part of the current years entitlement unless stated otherwise in the contract of employment. It is the responsibility of the employee to request the holidays that are due and not the employer to make sure that the full entitlement has been taken. However, should this be taken further I would guess that the employee would not be successful in a claim for holidays going back 5 years unless he / she had made some sort of regular effort to take the owed holidays, but that's only our opinion.

« Contracted automatic holidays »

I have been employed for six months working 16 hours over four days since 1st September. My company says I only have 6.5 hours holiday where as I calculate it as two weeks.

Based on the statutory minimum of four weeks holiday a year plus bank holidays for the period of your employment you have accrued 2.8 weeks holiday. Your first action should have been to ask your employer how he arrives at 6.5 hours. If there is a paid period of annual shut down, over Christmas and New Year for example, it may be part of your holiday entitlement and has already been deducted, your employer is entitled to do this as long as it forms part of your contract of employment.

« Part week workers entitlement »

I have an employee who works 40 hours over a four day week. Is he entitled to 16 or 20 days paid holiday?

All employees are entitled to a minimum of four weeks paid holiday plus bank holidays. The actual number of work days off is based on the number of days they work through the week. In this employee's case the total number of working days off is 16 plus 6.4 days for bank holidays, for a three day working week it would be 12 days plus 4.8 days for bank holidays. It is always better to calculate holidays based on weeks rather than days as a working week will always be a working week (no matter how many working days there are) where as the number of working days [per week] may change throughout the year making if nearly impossible to calculate correctly.

« SSP when on holiday »

Can an employee be paid SSP whilst being on paid holiday?

An employee is either on holiday or they are off sick. If the employee is on holiday then they are not working, as they are not working they can't be off work sick. SSP is only paid whilst you would otherwise be working and is meant to provide a minimum income whilst not being paid. If you are off sick and receiving SSP holiday pay can't be used to top it up as holidays have to be physically taken and are not allowed to be 'paid up', so, as above, the employee is either on holiday or off sick but not both. There has been a tribunal case where an employee was on holiday but became sick, in that specific case it was judged that the employee was entitled to SSP / or compnay sick pay and that they would be bale to re take their holiday (they seem to have forgotten that if you are not working you can't be off ill in this case!).