Holiday entitlement

[johny7days]

Hi all,

I work for a medium-sized company. For a long time, the company's only working shift was 8 am. till 4 pm. The holiday entitlement for that shift is calculated by the below formula:

5 shifts a week (Monday - Friday) x 5.6 weeks = 28 days of holiday per year

4-5 years ago the company has decided to introduce 12-hour shifts but they have not adjusted our contracts in terms of holiday entitlement, so instead of having 19.6 days of holiday per year (4 days on and 4 days off pattern gives 3.5 working shifts per week x 5.6 weeks is equal to 19.6 days) we just continued to have 28 days of holiday despite doing 12-hour shifts.

It took them 4-5 years to realize that something is not right and they plan on making mandatory changes to our contracts early next year. We are meant to sign the new contracts before March 2022.

The company does not have any trade union etc.

Now my question is: what sort of legal compromise can we (as employees) try to achieve? We see the problem because it is an obvious error in calculations but in the end, it has been neglected because of our management, not us (employees).

Thank you so much for all your help.

[echat11]

Hi Johny

ULA Can you please help and advise, many thanks.

[ostell]

Try here: https://www.gov.uk/calculate-your-holiday-entitlement

You are entitled to 28 days

[ULA]

As you say it is clear what the problem is the company did not change the holiday entitlement to equate to the new shift of 12 hour days 4 on/4 off. Effectively employees have had the benefit of holiday over and above the statutory requirements for 4/5 years.

They have given 3 months notice of the fact that your contract will be changing to reflect the correct holiday entitement (I assume that is the only change to the contracts) which would potentially be considered as reasonable notice.

If you do not agree to the change then you could work "under protest" for a while but you cannot do this indefinitely without taking further action.

As far as the employer is concerned, if you do not agree to the change, then ultimately they can terminate your original contract and offer a new one in its place on the new holiday entitlement.

What is it that you would be looking for in terms of a compromise?

[johny7days]

ostell The holiday entitlement for a 12-hour shift (4on 4off) is 19.6 days not 28 days

ULA Something to compensate for this mistake on their behalf. We will need to work more days a year to get the same pay so I think it would be nice for them to increase our wage a bit.

[ULA]

I doubt if you can argue compensation for loss of holiday enitlement given that your company clearly has a statutory holiday entitlement policy and the change is bringing the entitlement back in line with that. Plus you have had the benefit of their error in more than statutory entitlement for the 4/5 year period.

Where you potentially have some leverage is proving that the shift pattern of 12 hours 4/4 makes you financially worse off on say a per hour basis than the previous 5 day shift of a 35 hour week assuming an unpaid one hour lunch break.

[johny7days]

ULA Can the company try to make us pay back all the money they have overpaid for such holiday which was caused by their error?

[ULA]

Potentially, as the general rule is that if an employer has overpaid an employee, even though this is often the employer’s responsibility, the overpayment of wages will still need to be repaid. In other words, the employer is legally entitled to recover any salary overpayment from the employee.