Overtime accrued holiday question

[MrGashead]

Hi, so basically the wording in my contract is that I will accrue holiday based on the average hours/days worked over the previous 17 weeks. I have gone to my employer as I work a lot of overtime and they have come back with saying the 3 days holiday I’ve taken I will be paid at a rate that is 20p more an hour than my contracted hourly salary.

my question is, can this be done? I worked out I accrued 3.2 days holiday due to the amount of hours worked over the previous 17 weeks so how does an extra 20p an hour for 3 shifts cover that? Slightly confused.

thank you

[ULA]

Can you post up the exact wording of the clause in your contract regarding holidays and their accrual and payment please.

[MrGashead]

Hi, thank you for the reply,

the exacr wording is seperated into 2 clauses

•Holiday pay will accrue based on the average hours worked over the previous 12 weeks

• Annual leave entitlement will accrue based on th average amount of hours or days worked over the previous 17 weeks.

they have come back to me with a reply that is related to my holiday pay and not my annual leave entitlement.

basically I have a contract that is for 48 hours a week but also with accrued holiday. Seems to me that whoever wrote up my contract has given me a guaranteed amount of hours but with the same clauses as somebody with a zero hour cinteract.

thabk you

[ULA]

There does seem to be some confusion and thank you for the further information.

I presume your contract of employment has defined hours of work per week i.e. 48 hours and when they will be worked?

In regard to holiday pay from what the clause says it does seem to have treated you as if you were on a zero hours contract in that for such contracts accrual of holiday pay is based on the average pay you received over the last 12-week period.

Accrued holiday comes into play if you were on a “normal” employment contract and you were in your first or last year of service.

It may be worth asking your employer what type of contract they believe they have employed you on to try and unravel these inconsistencies. Hope this helps.

[MrGashead]

I Appreciate that detailed reply and thank you for taking the time. The longer version of this story is I transferred over to this company after my previous employ went insolvent. We were told that although this would not be a TUPE it would be treated as if it is and our terms and conditions would not need to be renegotiated. I work a 4 on 4 off shift pattern of 12 hour shifts. My understanding is that my contract should be for 42 hours and not the 48 it actually says. I have had confirmation that they have given me a contract based on a zero hour contract apart from the actual hours.

Any ideas where here I stand with this? I have been employed with them since February this year but mainatained my length of service from my previous employer of 2 years.

thank you

[ULA]

Generally, if a business is being purchased then TUPE will apply, however if the business being purchased is insolvent, in certain conditions, TUPE regulations do not apply effectively they can be relaxed to facilitate the sale of the business. It then comes down to whether the insolvent company was deemed to be terminal or non-terminal. To help work out what happened in your situation were you made redundant by the old company and entitled to a redundancy payment? In this case by going on to work for the new company, you will be deemed to be a new employee under new contractual entitlements.

However, the confusing part it that you said you have maintained continuous employment which would suggest that TUPE is relevant in your circumstances. If TUPE was applicable then you should have transferred whilst retaining your continuity of employment, contractual rights, and your agreed terms and conditions.

[MrGashead]

We were entitled to redundancy payments. There are a number of terms and conditions that have been retained but some that haven’t. One of these was we were getting 28 days holiday with the old company. This has now changed to 19.6 wich is the correct entitlement for the shift pattern I work. I’m just massively confused as to what my rights are

1- my contract says 48 hours a week (208 hours per month) if I just stick to my 4 on and 4 off I do not reach this amount of hours.

2- A 48hr contract of 12 hour shifts equates to 23 days holiday. But they’ve only given me 19.6

3- my average weekly hours over the previous 17 weeks is 49.8 so my understanding is that I should of accrued more holiday but they are not honouring this either.

sorry for all the questions.

Lastly if it makes a difference i currently have an employment tribunal date set for October next year due to the fact that we were promised in writing that our terms and conditions wouldn’t change with the new company but by reducing our holiday from 28 to 19.6 without consultation our terms have changed.

thank you

[ULA]

If you were entitled to and received a redundancy payment then I suspect that the purchase of the old company occurred after it was liquidated and in this situation TUPE would not apply.

However, if you have received written confirmation that your terms and conditions will not change then unless any changes are agreed with you your terms stand.

I appreciate you have a tribunal claim in regarding your holidays the 19.6 days calculation is correct for a 12 hour 4 on/4 off shift pattern, you can confirm this by using this government calculator website https://www.gov.uk/calculate-your-holiday-entitlement.

However as your contract states "

Annual leave entitlement will accrue based on the average amount of hours or days worked over the previous 17 weeks." then using the same calculator then you would accrue 6 hours and 1 minute per week x 17. This though would only be the case if you were on a casual or irregular hours contract, which you are not. Therefore I am confused as to why they accrue holiday entitlement on this basis.

[MrGashead]

Thankyou,

my understanding now is that they have given me a relief role contract by mistake. So now I have no idea what to do next. As HR won’t engage with me to try and get this sorted out.

[ULA]

If they have confirmed your terms and conditions remain as per your employment with your previous company despite TUPE not applying then that is the contract that should be on your file.

I am thinking that the lack of engagement from HR may be due to the fact that there is an ET claim which will centre around your terms and conditions of employment. I am not sure where you are in that process and whether you are being represented but one of the documents I would suggest be disclosed as part of the hearing bundle would be the contract of employment they hold on file for you.

Have you kept a copy of your contract with your previous employer, effectively the one that the new employer is saying is still your current contract? In normal circumstances I would suggest you write to your employer asking for confirmation that the contract is the one held on file for you, since you have had confirmation - insert date you received this - that these terms and conditions would apply to your employment with xxxx. However given the ET claim I do not want to suggest anything that may cause an issue with this.

[MrGashead]

I am not being represented and my ET is not until October 2019, we have done the disclosure and in that I have sent both contracts (old employer and current) I’ve been attempting to contact them to get this resolved.

They have messed up the contract royally and just don’t want to hold their hands up to admit it.

[ULA]

I am unclear as to why you have two contracts? If your new employer agreed in writing to retain your old employers terms and conditions then there are usually two options:

1. Old employer's contract Is retained with a letter from new employer confirming that the employee will retain these terms and conditions on taking up their employment in the new company.
2. Or new employer replicates the old employers terms and conditions on their headed paper.

Have you by any chance, despite being told you had retained your old terms and conditions, been given a new contract to sign?

[MrGashead]

Hi,
yes I was given a new contract, I refer to the old contract as that is what we were told was going to be the terms and conditions we kept. Despite this we have not kept them.

i have now raised a second grievance in relation to my contracted hours not being met and my holiday entitlement in my new contract not being honoured. Also the tribunal date has been moved forward to 04th January.

thank you for all your advice

[ULA]

I hope they do not take too long to respond to your grievance. Best of luck for the tribunal and it would be great to hear how that goes.