holiday pay

[Jamian]

Hey guys,

I'm a student and have worked for the past two years at a local boat yard. However I have recently left to go to uni and my employer is claiming he has paid my holiday entitlement.

From the 1st Jan 2012 I worked 1 day a week, 9 hours a day. Following the 1st of July I worked 5 day weeks at normally a minimum of 10 hours a day, but it varied. This continued up until the 16th of September 2012.

The 16th was my last day, I heard I was entitled to holiday pay which I hadn't claimed and contacted my employer. He told me he had paid me all of my holiday as I had taken two days off, one in each of the previous weeks to me leaving. I wasn't even aware this was holiday as its a casual employment and I normally take days off when needed.

But even with these two paid days which I am more than happy to accept as holiday pay, I am wondering if I should be entitled to more?

I earn £5 an hour, and for those two days he paid me as far as I'm aware what I normally earn, on average, a day.

Am I entitled to more?

Thanks in advance!

PS. One of my colleagues has recently had the same problems trying to get his owed holiday money, and insists we ARE entitled to more.

[teaboy2]

Re: holiday pay

Right you need to work out how many days per week on average that you have worked since the begining of the year and the date you left employment, then times that by 5.6 that will tell you how many days holiday you are entitled to, then subtract from the number of days holiday the actually holidays you had. So for example you worked 2 days a week on average times that by 5.6 and you would be entitled to 11.2 days holiday entitledment for the year.

As for your employer claiming you had 2 days holiday, well that is incorrect. You did not apply for them as holidays, therefore they were your unpaid days off. AN employer can not unilaterally decide a day is a holiday when you have not asked for said holiday, it is against the law. Withholding wages is a breach of the employment act 1996 section 13 and by not paying your holiday pay (wages) the employer is also in breach of section 16 of the working time regulations 1998

My advise would be to write a letter to your employer pointing this out to him and what your number of days holiday you were entitled to for this year and how many you had actually taken and how many he has yet to pay you holiday pay for.

[Jamian]

Re: holiday pay

I contacted my employer and it led to a rather bad end for me.

He claims that up until July I was contracted to work '4 hours a week'. So there was me working 8/9 - 5 a day thinking I had to be there and I didn't. I was never told I was only contracted for 4 hours, nor that the rest was over-time. I guess that is an error on my part for not finding out my contract details, even if it was a verbal one.

[teaboy2]

Re: holiday pay

Have sent you a PM in response to what you said above that was same as what was in your PM to me.

Though its worth looking at your contract of employment to see if you were contracted to just 4 hours a week, also there is a little not commonly known thing, known as custom and practice, where if you have been working a set amount of hours per day then such practice becomes normal practice and therefore become your contracted work hours. Courts do take this in too account when deciding judgement even in employment tribunals.

In order for an entitlement to become established by custom and practice, it must usually be long-standing, have been continuously applied, automatically given, well-known and expected to be received.

But i would say if you have been working 9 hrs a day from the start of january (is this when you started working for the company?) then your contracted hours will as a result of custom and practice have been 9hrs a day and not over time.