Holiday pay and employer harrassment

[Scherezade]

Hello
I am new to this forum and need some advice please. I raised the issue about holiday pay with my employer and this started a series of complications with regard to the employer seeking to avoid the obligation to make payments. The employer subsequently started a campaign of harassment against me including a false allegation of misconduct, which was dropped upon written challenge by me.

I have completed the ACAS process. The employer refused to co-operate with that other than insisting upon a private meeting - I declined that - my reason for involving ACAS is that I do not trust the employer and I wanted independent mediation. Nothing was resolved. I now have to decide whether to proceed to an ET. I cannot afford a solicitor and I have not therefore been able to obtain a legal appraisal of my pertinent documentation.

I was on a zero hours contract and I have stopped work as I am fearful of further harassment by the employer. My only income is JSA.

CAB was not particularly helpful - the advisor, although qualified, just did not answer my questions - he was not really listening and just advised me to do things I had already done. He appeared not to acknowledge the impact that the employer harassment has had upon me. I have tried Bar Pro Bono - the solicitor I spoke to said that nothing could be done without examination of my documents and this is not part of the Bar Pro Bono remit. The conclusion was to 'seek legal advice'!!!.

I would appreciate any advice.

[teaboy2]

Re: Holiday pay and employer harrassment

How long have you been on zero hour contract prior to seeking holiday pay?

How many hours did you work on average per week or if same amount of hours per week how many hours in total since beginning of your employers holiday year?

Can you scan up a copy of the contract too in its entirety minus yours and your employers details?

[Scherezade]

Re: Holiday pay and employer harrassment

How long have you been on zero hour contract prior to seeking holiday pay?

How many hours did you work on average per week or if same amount of hours per week how many hours in total since beginning of your employers holiday year?

Can you scan up a copy of the contract too in its entirety minus yours and your employers details?

[MENTION=19071]teaboy2[/MENTION]

Thanks for your reply. To answer your questions:

2.5 years

Approximately 2 hours per week

I will need to give you a bit more detail. I had 2 jobs with this employer. The first is above NMW. The 2nd (started later) was agreed verbally as NMW.

My employer introduced 'rolled up holiday pay' in winter 2012. This was effectively a pay cut for all staff as the holiday pay then became incorporated into the hourly rate rather than in addition to it (the CAB advisor said this pay cut is legal).


My payslip show the hours worked and rate for job 1. However, job 2 (NMW) is just paid as a lump sum on the payslip and there is no itemisation - nothing to show pay rate or how many hours I did (I kept my own records). I have not been paid any holiday pay for job 2.

After I raised the issue and received a response, I asked for a copy of my contract (as I had never seen it before). It was not available so I asked again the following week and it was produced immediately (could have been typed in the week between asking and receiving). The contract looks suspiciously like it was produced to fit the scenario. Of course, I cannot prove this.

I believe I am owed holiday pay from job 2.

[teaboy2]

Re: Holiday pay and employer harrassment

Rolled up holiday pay where holiday pay is part of your hourly rate is unlawful and probably takes your pay below minimum wage when holiday amount is deducted from holiday rate - https://www.gov.uk/holiday-entitleme...pay-the-basics

Yes you would be entitled to holiday pay as you accrued holidays for hours worked - http://www.acas.org.uk/zerohours

Using the government holiday calculator based on you working 2.5hrs per week your entitled to 14hrs paid holiday per year. So that be 14 divided by 2.5 equals 5.6 days per year!

Unfortunately i can not view the attachment for some reason, hopefully @Kati can fix that so i can view it!

How many hours do you work for the 2nd job per week?

[Kati]

Re: Holiday pay and employer harrassment

Unfortunately i can not view the attachment for some reason, hopefully @Kati can fix that so i can view it

I can't open it either .... if [MENTION=65977]Scherezade[/MENTION] can email it to me I'll post it up kati@legalbeagles.info

[Scherezade]

Re: Holiday pay and employer harrassment

[MENTION=19071]teaboy2[/MENTION]

I used the gov.uk calculator to calculate my holiday pay. I itemised it in a statement and gave it to the employer. The employer came back to me and said I was not owed anything. ACAS have been absolutely useless. My ACAS conciliator made it clear that ACAS do not provide 'advice' only 'information'. My ACAS conciliator actually did not contact me for about 2 weeks during the conciliation period. All my contact with the conciliator involved them trying to persuade me to give in to the employer's demands for a private meeting. The whole point of involving ACAS was for conciliation. It was a complete waste of time because the employer would not negotiate at all - just kept insisting upon a meeting, which I would not attend because of lack of trust (the employer is a liar and cheat).

I worked about 8-22 hours per week in job 2 (NMW). I was there for about 6 months.

I can see that it would be difficult claiming holiday pay for Job 1 because I received the rolled up holiday pay - even though that is illegal, there is still some debate about that and the CAB person thought I did not have much of a chance. The basic rate of pay was higher than NMW so I could not claim that I received less than NMW for job 1.

For job 2, I was paid NMW for the hours that I did, but these hours were not itemised on the pay-advice slips. I believe that there has been some sharp practice going on.

I have emailed the document to Kati to post up.

[Kati]

Re: Holiday pay and employer harrassment

I have emailed the document to Kati to post up.

Got it

[teaboy2]

Re: Holiday pay and employer harrassment

Right well under Holidays section it says your entitled to 28 days holiday per year! And that you'd be entitled to basic remuneration whilst on holiday. So basically you still receive your pay. What they are doing is spreading the full cost of the 28 days over your years salary (12.07% of your monthly wage is holiday pay). instead of paying you holiday as per when you take it. This can result in you owing them money if you took less holidays then what you had been paid for in your remuneration. For example if you took 20 holidays in the year you will have still have been paid 28 days holiday so would owe the 8 days wages. This is one reason its unlawful to roll up holiday pay as part of your wage remuneration (hourly rate).

Was this the contract for the second job or the first one? Just so where clear as i wouldn't want to advise regarding the second job if this contract was for your first job!

I will say this though, the post termination clauses are invalid, as they are restrictive covenants and they clearly refer to throughout the UK, which makes the terms to broad. Such terms are only valid if they refer to a limited radius from place of work or to certain geolocations i.e. town, city or county! They simply can not restrict you for working in the same industry everywhere in the UK!

@Kati thanks for sorted that for us lol

[Scherezade]

Re: Holiday pay and employer harrassment

Got it

The contract is actually the only one that I have. I believe that it covers both jobs that I did. You will note from page 1 (job title) I am employed as a (left blank to avoid ID). My primary role is a professional role but you will note that it includes additional duties to meet the needs of the business. I presume my 2nd role met the needs of the business but the contract says nothing about a different pay rate for unskilled work undertaken. I raised that with the CAB worker but he seemed to think that any verbal agreement (to do the 2nd job for NMW) supersedes that. I cannot, therefore claim the same pay for doing the unskilled work, even though the contract seems to suggest only 1 pay rate (left blank to avoid ID).

I redacted a lot of info' as I do not know who reads this forum. PM me if you want any other detail.

[teaboy2]

Re: Holiday pay and employer harrassment

Ok well CAB is wrong. As basically they would have to have an additional written contract stating that rate of pay for the additional duties is NMW. They don't have this, they only have a verbal agreement. Basically that means they requested you to carrying out the duties that fell under a different role in addition to your contracted duties. This amounts to a variation of your contractual terms under job 1, if its a permanent arrangement! Therefore they can not pay you less per hour for the duties you carry out that fall under the second role, as those duties have effectively been transferred to you under your role under job number 1.

So its one job you have not 2, and only one contract.

In order to pay you NMW for hours spent working the additional duties they would have to include terms clarifying this by way of giving you a second contract of employment in writing. As it be no different to working 2 jobs for 2 different employers. But as they haven't done that, then the additional duties taken on by you as per the second role are basically added to your main duties and you should be paid the same rate of pay. They have in-effect transferred those duties from the 2nd role to your 1st role! The verbal agreement in employment matters mean nothing, as they is no written terms to tie them to your employment contract or terms to separate them from one employment contract you already have in order for the 2nd job to be based on an entirely different contract of employment not connected to the first job!

Therefore as the duties where transferred over to you as per your role in job 1, then they owe you the difference in wages. I.e. job one rate minus job 2 rate for total hours worked under job 2 this can be claimed by way of unauthorised deductions at ET. And off course your still entitled to 28 days holiday!

[Scherezade]

Re: Holiday pay and employer harrassment

Crickey! it looks like the employer has slipped up if that is legally enforceable. I am just wondering what I need to do. Going to an ET is a huge step and I feel soooo daunted by the process. I am worried about the employer making some counter claim if I lose.

[Kati]

Re: Holiday pay and employer harrassment

Therefore as the duties where transferred over to you as per your role in job 1, then they owe you the difference in wages. I.e. job one rate minus job 2 rate for total hours worked under job 2 this can be claimed by way of unauthorised deductions at ET. And off course your still entitled to 28 days holiday!

So ... not only is [MENTION=65977]Scherezade[/MENTION] owed holiday pay for the second job, they're also owed wages too??

[Scherezade]

Re: Holiday pay and employer harrassment

.....looking at another thread on this forum, the person was advised to contact HMRC. Does this seem like a viable alternative in my case??

[Scherezade]

Re: Holiday pay and employer harrassment

So ... not only is @Scherezade owed holiday pay for the second job, they're also owed wages too??

My suspicion is that if I took this to ET, the employer would 'produce' a 2nd, separate contract for the 2nd job (like it had always existed). The employer is a rogue and would do anything (myself and colleagues have witnessed him lying to clients in order to deprive them of something they are entitled to, and using psychological coercion in order to persuade them not complain about this. A senior colleague threatened to expose him but nothing else was heard and it is presumed to be contained).

Would the fact that payment for the 2 separate jobs (on a single pay advice slip), be sufficient evidence that there is no separate contract for the 2 jobs? The fact that the NMW wage job is listed as an 'adjustment', but not itemised (hours and rate are not shown), appears indicative that this is calculated to be vague / deceptive i.e. There is no actual proof of hours so the rate could not be calculated from the payment, and neither could the absence of any holiday pay (for that job) be apparent from the payslip.

[teaboy2]

Re: Holiday pay and employer harrassment

So ... not only is @Scherezade owed holiday pay for the second job, they're also owed wages too??

Well no shes only entitled to 28 days holiday and that holiday pay was rolled up in to her per hourly rate for the first job, so techinically they only owe her for the difference between NMW and her hourly rate for the first job, minus the holiday pay amount that's paid per hour. Basically they have increased her duties with the additional duties they have asked her to do, and as such her hours have been increased too, therefore her pay rate has to be the same across all ours of work.

The reason they done this the way they have, is due to the holiday pay being tied to her holiday rate and contracted hours, at 12.07% of her monthly pay being holiday pay. In other words because her hours increased, they couldn't be arsed recalculating how much pay per hour/month would be holiday pay, meaning her hourly rate in her contract would have decreased, due to extra hours but her holidays still reaming at 28 per year. Its because of things like this that rolled up holiday pay was made unlawful as it contravenes the working time directive!

However it is acceptable in certain circumstances i.e. Where the holiday pay element of wages is genuinely an additional payment to that made in respect of work actually done. It is not enough for employers to allocate part of a worker's existing wages to holiday pay. Therefore, it would be acceptable to agree to pay a worker £12 per hour where the standard rate was £10, with the extra £2 representing holiday pay. It would not be permissible to state that from the standard rate of £10, £2 of that was in fact holiday pay.

I do not see anywhere in the contract where is defines what the worker is paid per hour i.e. £12 but also states £10 is the standard hourly rate and £2 is holiday pay, bringing the total paid per hour to 12 - All i see is they refer simply to 12.07% of the monthly salary being holiday pay! So the way they have gone about it is unlawful in my view as basically state his/her hourly rate then later co on to state 12.07% of his/her monthly salary is holiday pay, which is the same as saying that the standard rate is £10 and £2 of that is holiday pay, which isn't acceptable! It would only be acceptable if the contracted stated the standard rate is £10 plus additional £2 for holiday pay bringing the hourly rate to £12 - But it doesn't state that so what they have done is unlawful rolling up of holiday pay!

How the CAB adviser could spot this is beyond me, but i guess lately CAB and ACAS have been on equal poor form as each other. If the adviser doesn't know about employment law or isn't sure then they should ask a colleague more clued up rather than give out incorrect advise!