holiday pay claims

[craigw]

Hi I phoned a claim lawyer the other day to see if i can claim back this average holiday pay thing we've heard about in the news .it says you can claim back to 1998 on things like overtime, callout rota, commision, etc being averaged into yor holiday pay instead of just being paid a flat holiday pay rate . I am on long term sick at the moment and was told I would need to have taken a holiday in the last three month to make a claim surely this can't be right as we think we, ve been miss payed these holidays for these years thanks

[des8]

Re: holiday pay claims

It would seem they are correct, in respect of a claim for unlawful deduction of wages. However you might have a case for Breach of Contract.

"Employees who believe they have been underpaid holiday pay may have a claim for unlawful deduction from wages or they may claim for breach of contract. An unlawful deduction from wages claim has no time limit for past claims if there is a series of deductions from wages and the last deduction was within three months of the date in which the claim is brought; a breach of contract claim is limited to six years" (http://www.thehrdirector.com/features/pay/important-law-case-on-holiday-pay/)

[Johnboy007]

Re: holiday pay claims

Before you do any claiming, make sure you check your contract of employment, or your written statement of employment, to see what it says about holiday pay.

How is a week's pay calculated?

Workers with normal working hours
- If a worker's pay does not vary with the amount of work done then a week's pay is the amount due for a week's work under the worker's contract.
Pay for non-contractual overtime is excluded.
If a worker's pay varies with the amount of work done then the amount of a week's pay is the pay for the normal weekly working hours multiplied by the
workers average hourly rate over the preceding 12 weeks. This may occur under
a piece work, bonus or commission system. To calculate the average hourly rate
only hours where the worker was working and the pay related to them, should
be taken into account.
Overtime hours can be included although pay for these hours should be adjusted to the normal rate. Any week in which no pay was due, for hours worked, should be replaced by the last previous week in which pay was received for hours worked.
Shift and rota workers, whose pay varies because they work their normal hours
at varying times and in varying amounts in different weeks, have their week's pay
calculated differently. Their average weekly hours of work, in the preceding twelve weeks, are multiplied by their average hourly rate. The hourly rate is
calculated as above and includes any shift allowance which is payable.
Workers with no normal working hours
If a worker has no normal working hours then a week's pay is the average pay
received over the preceding 12 weeks.
Any week for which no pay was due should be replaced by the last previous week for which pay was due.

[des8]

Re: holiday pay claims

Hi Jb, here we go again lol
I believe a recent employment tribunal case has moved the goalposts so that holiday pay calculations must take into account the workers average earnings in the twelve weeks leading up ZJ lock v British Gasto their holiday, including overtime voluntary or contractual. http://www.acas.org.uk/index.aspx?articleid=4520

By the by, commission also now has to be included in holiday pay :http://www.bailii.org/eu/cases/EUECJ/2014/C53912.html

[Johnboy007]

Re: holiday pay claims

Hi Jb, here we go again lol
I believe a recent employment tribunal case has moved the goalposts so that holiday pay calculations must take into account the workers average earnings in the twelve weeks leading up ZJ lock v British Gasto their holiday, including overtime voluntary or contractual. http://www.acas.org.uk/index.aspx?articleid=4520

By the by, commission also now has to be included in holiday pay :http://www.bailii.org/eu/cases/EUECJ/2014/C53912.html

Hi Des,
I was going to update my files to reflect this change.
But I did read the following which may or may not change the decision by the Tribunal.
This decision could be tested by the higher courts but, for the time being, any paid overtime (whether voluntary or not) should now be considered alongside other premiums in employers' holiday pay calculations, says the CIPD report.
So I don't think we better agree to disagree yet.....:laugh:

[Debt Camel]

Re: holiday pay claims

It would seem they are correct, in respect of a claim for unlawful deduction of wages. However you might have a case for Breach of Contract.

"Employees who believe they have been underpaid holiday pay may have a claim for unlawful deduction from wages or they may claim for breach of contract. An unlawful deduction from wages claim has no time limit for past claims if there is a series of deductions from wages and the last deduction was within three months of the date in which the claim is brought; a breach of contract claim is limited to six years" (http://www.thehrdirector.com/features/pay/important-law-case-on-holiday-pay/)

So for craigw the effect is that he will need to claim in the County Court for breach of contract rather than at an Employment Tribunal.

Details on how to do this are here http://www.adviceguide.org.uk/wales/...all_claims.htm. You don't need to use a lawyer to do this. The first thing to do is to work out how much to claim for - you have to put a fugure on this. Next you should write a Letter Before Action to your employer and ask for the payments of this amount, showing how you calculated it. See http://www.adviceguide.org.uk/wales/...ore_action.htm

NB this is pretty confrontational thing to do, so if you are on otherwise good terms with your employer and expect to be returning to work at some point, you may want to consider writing a more friendly letter first saying that you have heard that holiday pay should now include etc etc and would the employer consider recalculating the amount you have been paid. These isn't legally necessary, only the Letter Before Action is, so it will depend if you wish to try to stay on good terms with your employer.

Other considerations - are you a member of a Trade Union? If so contact them and let them take the matter up. Are other workers similarly affected?

[Johnboy007]

Re: holiday pay claims

[So for craigw the effect is that he will need to claim in the County Court for breach of contract rather than at an Employment Tribunal.]

Sorry, but I have to disagree with this statement.
As the OP is still employed, then the correct procedure is the Employment Tribunal.
You must contact Acas (Advisory, Conciliation and Arbitration Service) to use their free ‘Early Conciliation’ service before applying to the tribunal.
Stepping outside of these procedures could backfire on you.
It is primarily an employment issue, so should be settled by ACAS or ultimately the Employment Tribunal.:tinysmile_grin_t:

[des8]

Re: holiday pay claims

I agree (whoopee!) the first steps should be contact with employer (if you wish to remain on good terms) in an attempt to resolve the issue in a friendly manner.
If that fails move onto ACAS conciliation service.
If that fails I doubt if there will be any point in going to tribunal as their decision has not yet been challenged in a higher court, and so stands.& there is that three month limitation for bringing claims
That leaves County Court.