# Holiday pay being 'rolled up' into hourly rate and not been made clear



## ddraig (Aug 18, 2011)

right, slightly difficult situation but my trade unionism won't let it lie!

I work full time and also work on a temp casual basis for the same organisation doing a completely different job, often taking time off from my main job to do the casual stuff as it makes a change and I enjoy it.
there are freelancers and contractors that also do the casual work.

There has recently been a hooha about us not getting holiday pay which led someone to challenge the organisation for "not communicating clearly, comprehensively and transparently".
The organisation claimed that because of the number and varying bits of work it would be too difficult to administrate the holiday pay and that it is "rolled up" into the hourly rate we get to cover this. They claim that the rate was increased by 12.07%.
they do admit that a European court case in 2006 judged that paying holiday pay on a rolled up basis was a technical breach of the Working Time Regulations 1998 unless the worker had been told clearly, comprehensively and transparently how holiday pay would be made up.

this was a few months ago and no word since apart from the pay for this work now showing as 2 different amounts on payslip, hourly rate and holiday pay. the pay adds up to the same as before.

Apparently and allegedly the person who challenged them on it went mad at them and got a load of money as holiday pay but again allegedly they have not been given any work since. afaik no one else has had this money paid to them.

my point is that if one person has had it then we should all have it regardless of challenging it.
what with this being popular, varied, enjoyable and sought after work they have quite a few people to choose from and new people all the time.
on the one hand I can't let it lie if one person has been paid off and the rest of us not and on the other hand I don't really want to lose out on the work.

aaargh. any experience or advice of this or a similar scenario much appreciated!
cheers


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## Fruitloop (Aug 18, 2011)

I always hated this about temping, it's a scam isn't it. As if they don't just knock the amount off and then put it on again, seriously who do they think they're fooling.

Back in the day there was nothing you could do about it, but I did think things had changed. Surely if one person has had it paid then they are in a weaker position?


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## gabi (Aug 18, 2011)

i cant figure it out either. im on an hourly rate, which they seem to cut down by a coupla quid on the payslip, and then top-up with holiday pay to make the original agreed rate. cunts.


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## Mrs Magpie (Aug 18, 2011)

When I did temping for an agency the holiday pay was really clearly separately shown on each wage slip. These people you're on about are clearly on shaky ground.


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## Fruitloop (Aug 18, 2011)

Have you got your original contract?


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## ddraig (Aug 18, 2011)

yeah i know this is done by agencies and such cunts as a stitch up but I assume they cover themselves in the small print/contract.

the difference is that I work for the organisation full time in another role and wondered if I should maybe be getting TOIL for it or the money.
the work can be quite demanding and full on with a fair bit of responsibility and the new rate of under £7p/h makes it seem a bit shit tbh


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## ddraig (Aug 18, 2011)

Mrs Magpie said:


> When I did temping for an agency the holiday pay was really clearly separately shown on each wage slip. These people you're on about are clearly on shaky ground.


yes they are Mrs M and would be shakier if I/we could prove that they had paid this one person and no one else.


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## ddraig (Aug 18, 2011)

Fruitloop said:


> Have you got your original contract?


I'm really not sure that I ever had one you know!

I will be taking advice from my union but wanted urbs view/experience too.
thanks


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## Mr Smin (Aug 21, 2011)

ddraig said:


> yeah i know this is done by agencies and such cunts as a stitch up but I assume they cover themselves in the small print/contract.
> 
> the difference is that I work for the organisation full time in another role and wondered if I should maybe be getting TOIL for it or the money.
> the work can be quite demanding and full on with a fair bit of responsibility and the new rate of under £7p/h makes it seem a bit shit tbh



If you get a better rate for your main job, just stick with that? If they really need the other work done, they could improve the rate in order to tempt you to do it.

Sounds like some agencies are very dodgy about holiday pay. Mine pays me per hour at the agreed rate and pays the holiday completely separately and only when I notify that I am 'on leave' (I can't work for them at the same time as taking holiday pay). Not like they can't afford it - I've seen what they charge the clients for my time!


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## Mrs Magpie (Mar 24, 2013)

...and the hoary problem of holiday raises its head again......

Someone I know who works for a large company in the leisure industry with very variable hours doesn't have a copy of his contract (it's 'kept safe' by the employer) so he can't check his terms and conditions. He raised the question of holiday pay a while ago (which is not listed on his payslip). He's been told he's too late to claim it this year and should have claimed it earlier in the year and basically he's lost it. Has he a leg to stand on?


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## equationgirl (Mar 24, 2013)

Mrs Magpie said:


> ...and the hoary problem of holiday raises its head again......
> 
> Someone I know who works for a large company in the leisure industry with very variable hours doesn't have a copy of his contract (it's 'kept safe' by the employer) so he can't check his terms and conditions. He raised the question of holiday pay a while ago (which is not listed on his payslip). He's been told he's too late to claim it this year and should have claimed it earlier in the year and basically he's lost it. Has he a leg to stand on?


It is everyone's legal right after two months of continuous employment to have a statement of their terms and conditions.
https://www.gov.uk/employment-contracts-and-conditions/written-statement-of-employment-particulars

They sound well dodgy, quite frankly.


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## Mrs Magpie (Mar 24, 2013)

equationgirl said:


> They sound well dodgy, quite frankly.


This is rather what I think too


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## equationgirl (Mar 24, 2013)

Mrs Magpie said:


> This is rather what I think too


I doubt if the contract exists. Which is illegal, he has to have at least a written statement by law. 

The gov.uk page was sadly not helpful in terms of what to do if the employer won't give one (talk to employer, raise a grievance, take to a tribunal) so I'm still looking for answers on that bit.


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## Mrs Magpie (Mar 24, 2013)

It's already complicated enough with the variable hours. Personally I think in that situation the holiday pay should be added onto the wages rather than some complicated working out for some holiday pay at some point....and what's happened here is basically, you didn't take your holiday in time so you've forfeited it. I think with salaried full-time workers that sort of arrangement is one thing but for minimum wage variable hours? No.


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## equationgirl (Mar 24, 2013)

Mrs Magpie said:


> It's already complicated enough with the variable hours. Personally I think in that situation the holiday pay should be added onto the wages rather than some complicated working out for some holiday pay at some point....and what's happened here is basically, you didn't take your holiday in time so you've forfeited it. I think with salaried full-time workers that sort of arrangement is one thing but for minimum wage variable hours? No.


I'm not sure that's legal in all honestly, I think it's just an excuse to not pay them the money. 

As you say, it's one thing for full-time permanent workers to forfeit holidays - my place has a 'use it or lose it' policy unless there is prior agreement for carryover into the next year, but the carryover comes with all sorts of stipulations like using it by a certain date - but for minimum wage workers, bang out of order.


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## Mrs Magpie (Mar 24, 2013)

This may be a problem at local line manager level as opposed to head office. To be honest the bloke is disorganised, lazy and stubborn. Would cesare know the legal position I wonder?


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## equationgirl (Mar 24, 2013)

I've had a look around, the best thing to do first might be to ask the employer for the written statement - the employer is legally bound to provide one - and phone ACAS for what to do next:

http://www.acas.org.uk/index.aspx?articleid=2042

Also, under the holiday section, if an employee leaves they are entitled to be paid for any holiday not taken, so not paying them become of some arbitrary deadline hitherto uncommunicated to the employee is unlikely to stand, in my non-legal opinion.


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## equationgirl (Mar 24, 2013)

Mrs Magpie said:


> This may be a problem at local line manager level as opposed to head office. To be honest the bloke is disorganised, lazy and stubborn. Would cesare know the legal position I wonder?


I think they would. cesare is excellent on this stuff, way better than me.


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## Mrs Magpie (Mar 24, 2013)

She is, isn't she?


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## Mrs Magpie (Mar 24, 2013)

equationgirl said:


> not paying them become of some arbitrary deadline hitherto uncommunicated to the employee


It was communicated but very recently and by text.
.


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## equationgirl (Mar 24, 2013)

Mrs Magpie said:


> It was communicated but very recently and by text.
> .


And had already passed, perchance?


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## Mrs Magpie (Mar 24, 2013)

No, but very close I think. I'll check when I next see him.


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## equationgirl (Mar 24, 2013)

The more facts you can get him to elicit from them, the more acas will be able to assist.


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## Puddy_Tat (Mar 25, 2013)

quite a bit about this on CAB's adviceguide site here


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## cesare (Mar 25, 2013)

ddraig You should be able to claim the holiday pay, or toil, retrospectively. The only way round this (as far as the employer is concerned) is that the employer pays for the current holiday year only and therefore circumvents the 3 month deadline for making the backdated payments (it breaks the link to past holiday years). There's more on this here: http://www.sedgwick-legal.co.uk/sit...holiday_leave_ET_rejects_backdated_claim.html Note that the claim would be for unauthorised deductions from wages.

You should also look at the temp/casual job that you're doing compared to permanent staff and see if the terms and conditions are comparable to a comparable permanent fulltime role. If they're not, the employer could be falling foul of the part time workers regs that protect part timers from less favourable treatment on the grounds of their part time status. If it's agency - the Agency Workers Regs might apply in a similar way if the job's been done for 12 weeks or more.

Part time Regs info: http://www.tuc.org.uk/workplace/tuc-19856-f0.cfm
Agency worker Regs info: http://m.acas.org.uk/index.aspx?articleid=1873

The basic position is that rolled up pay is unlawful, and the only way that employers can justify doing it is to separate the holiday pay element on the payslip so that it's clear and transparent. Contracts should have been renegotiated rather than the employer just changing how they show it and thereby lowering your hourly rate. It's not on. https://www.gov.uk/holiday-entitlement-rights/holiday-pay-the-basics


Damn! Just noticed the date of the thread  Did you get it sorted, ddraig?


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## cesare (Mar 25, 2013)

Mrs Magpie said:


> ...and the hoary problem of holiday raises its head again......
> 
> Someone I know who works for a large company in the leisure industry with very variable hours doesn't have a copy of his contract (it's 'kept safe' by the employer) so he can't check his terms and conditions. He raised the question of holiday pay a while ago (which is not listed on his payslip). He's been told he's too late to claim it this year and should have claimed it earlier in the year and basically he's lost it. Has he a leg to stand on?


As equation girl said, he's entitled to a written statement of his terms and conditions. He's got a statutory right to 5.6 weeks holiday (pro rata'd for part time) per holiday year so if holiday pay doesn't show separately on his payslip each week/month then he gets it on top whenever he takes leave. 

The variable hours are dealt with by taking an average of the past 12 weeks: https://www.gov.uk/holiday-entitlement-rights/holiday-pay-the-basics


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## cesare (Mar 25, 2013)

Mrs Magpie said:


> It's already complicated enough with the variable hours. Personally I think in that situation the holiday pay should be added onto the wages rather than some complicated working out for some holiday pay at some point....and what's happened here is basically, you didn't take your holiday in time so you've forfeited it. I think with salaried full-time workers that sort of arrangement is one thing but for minimum wage variable hours? No.


They can say he's forfeited it if he doesn't take it in the holiday year; but they'd be on sticky ground unless they tell him that in advance by way of the written statement or even some other documentation they could point to him having seen.

It would be an unauthorised deduction from his wages - grievance and if unsuccessful, ET claim.


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## Mrs Magpie (Mar 25, 2013)

Thanks cesare He was sent a text. I'll ask when it was sent. Not hugely in advance I don't think though. Personally I think a text, although it may count as documentation, is a bit shoddy really. But then I know someone else who was sacked by text. Seems be be an acceptable form of official contact these days, textspeak.

Thanks for your help everyone.


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## ddraig (Mar 25, 2013)

thanks cesare
yeah we got a wierd but welcome payslip this month with extras and bits that came out of some crazy calculations

good timing as my full time pay is getting cut from next month (luckily getting a new job!)


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## cesare (Mar 25, 2013)

Mrs Magpie said:


> Thanks cesare He was sent a text. I'll ask when it was sent. Not hugely in advance I don't think though. Personally I think a text, although it may count as documentation, is a bit shoddy really. But then I know someone else who was sacked by text. Seems be be an acceptable form of official contact these days, textspeak.
> 
> Thanks for your help everyone.


A text! Good grief. It would have to have been a pretty long and detailed text to fully explain holiday entitlement, calculations, when it had to be taken by and in sufficient time for him to take it all. It wouldn't count as a written statement though, in any event.


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## cesare (Mar 25, 2013)

ddraig said:


> thanks cesare
> yeah we got a wierd but welcome payslip this month with extras and bits that came out of some crazy calculations
> 
> good timing as my full time pay is getting cut from next month (luckily getting a new job!)


I hope they paid you all of it! Good news re the new job, hope it goes well x


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## Mrs Magpie (Mar 25, 2013)

cesare said:


> A text! Good grief. It would have to have been a pretty long and detailed text to fully explain holiday entitlement, calculations, when it had to be taken by and in sufficient time for him to take it all. It wouldn't count as a written statement though, in any event.


Oh good. I'll tell him when I see him. Thanks very much indeed.


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## cesare (Mar 25, 2013)

Mrs Magpie said:


> Oh good. I'll tell him when I see him. Thanks very much indeed.



Hopefully they'll back down and pay him what's he's owed.


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