I am hoping someone can point me in the right direction for information or case law.
I am treasurer for a pre-school and we have a situation where our supervisor and deputy are paid a retainer during the school holidays, they are also paid their annual leave entitlement during august. I've inherited this system but afaik you can't be paid holiday pay and a retainer at the same time but I can't remember where I heard it from and I need something substantial before I start rocking the boat.
I does cost us an awful lot of money paying this retainer and we can't see where it was actually agreed but it has been common practice for a few years now so we need to be clear abut the law.
I think that you need to speak to your unions, or HR/legal for your local authority (if you're in the state sector), or the board/trustees (if you're not) to be honest. However, I can give a few pointers:
1. All employees are entitled to 28 days' holiday per year (pro rata if part time). Contracts can specify when this is taken, which is effectively what normally happens with teachers;
2. No one is legally entitled to a retainer under statute or case law (as far as I know). A retainer is generally something you offer an employee to retain their skills during a period where there is no work;
3. It would be odd to have a 'retainer' paid during holiday times, as presumably the supervisor and deputy remain employees throughout this period (you can't really be on holiday if you're not still employed, IYSWIM) and are presumably being paid full pay if they are on holiday;
4. However, if the retainer is in their contract, or if they have been paid it for a number of years, it may have become a contractual right to have this payment. You'll need to look into whether that is the case. If there is a contractual right, then stopping the payments is not as simple as just saying you won't pay, it will be a contractual variation and there will need to be a procedure followed and your reasons for removing the payment will be relevant. The government has more guidance on their website here.