To think my boss is breaking the law

[tequilasunset]

I started work in a restaurant on 1st April this year 1. The restaurant opens 7 days a week from April until October then weekends only from November until March.

The hours differ from week to week, on a rota basis.

I haven't been given a contract and was told when I started that the boss only pays 16 hours holiday pay as it's seasonal work.

I didn't actually think anything of it at the time but after a conversation with a friend, I'm sure that this can't be legal!

I haven't been given a payslip since week ending 7th October but according to that payslip, I have been employed for 27 weeks and have worked 1,252 hours.

I have calculated that from 7th October until the end of December I will have done approximately another 100 hours, bringing my total hours for the year to 1,352 in 9 months.

I put this information into a holiday entitlement calculator and it said that I was entitled to 163 hours of holiday pay - so minus the 16 hours I've already received, my boss apparently owes me an extra 147 hours of holiday pay

Are my calculations correct?? And if so, how can my boss get away with not paying it??

If my calculations are wrong, can you please explain why?

Your entitled to just over 12% of the hours you have worked, back in holiday pay. So your calculations sound about right.

I’d speak to your boss in the first instance and remind them of their legal obligations. If they still don’t oblige then call ACAS for advice.

My dd is going through this with her former employer - also a restaurant. I spoke to ACAS about it last week. They were quite helpful.

We have written a letter to their head office requesting payment. If they don't then she has to raise a grievance and ACAS suggested using mediation to resolve.

9 months is ¾ of 1 year. Every employee is entitled to 5.6 weeks of leave per year. So you have accrued 4.2 weeks of leave so far this year.

You have worked 1352 hours in 9 months. That equates to about 35 hours per week (1352/9×12÷52=34.66).

4.2 weeks × 35 hours = 147 hours.

Obviously, I don't know your exact circumstances, but as a ballpark, it doesn't seem too inaccurate.

Thank you for your replies.

I'm going to speak to my manager tomorrow but I already know it'll be a struggle to sort it out.

It's not a chain restaurant, just a small one owned by a mother and son. So no head office or HR department, unfortunately.

They are notoriously tight and won't part with money without a fight!

How many other employees are there? I have a nasty feeling that businesses with below a certain number of employees are excused a few bits of employment law.

Are they deducting tax from your pay? It's possible they are listing you as a freelance or self-employed worker so you have fewer rights, as well.

During the busy months, they have about 12 employees, but since then end of October there are only 3 of us.

I'm given a weekly payslip, (although I haven't received one for a few weeks now) that shows my tax and national insurance contributions, so I think I'm classed as an employee.

Why, Tinsel? Why should she not get what she is owed just because she's on a low wage?

Unite are organising hospitality workers. You may want to give them a ring re advice and support.

No, I don't think it is. They are breaking the law.

Do the payslips show the number of hours worked? Is the tax and NI correlated with the number of hours you have actually worked? Do they have a clock in/out system?

@Tinsel79 so, because I only earn minimum wage, my employer should be allowed to take advantage and withhold almost £1,200 of money that I am entitled to??

The payslips do should the hours worked, as well as the tax and ni contributions.

Without the holiday pay you are below minimum wage ..... you can report for that

5You are due to be paid just over 12% of what you have earned. I had to look in to this for my daughter. It's the law.

www.google.com/search?client=firefox-b-ab&q=holiday+entitlement+for+zero+hour+contracts

@notapizzaeater can you explain that please?

What happens if they don't pay it before then end of the year? As i won't be able to take the holiday days, will I lose the pay??

Holiday pay is not a part of employment law anyone is excused from. I would get in touch with ACAS and get the legislature all referenced in a piece of paper, as well as links to the ACAS explanations so they can check before you go and talk to them. I would also write back all my calculations out neatly so they were easy to follow with explanatory notes alongside the calculations so they can't claim not to understand how you got to your answer, which also makes it easier to push home your point. Best of luck Op!

Their failure to pay the holiday pay does not remove your entitlement to be paid for it. However there may be a limit on how long after you can claim for it through the courts, so worth having a check about the limitations on employment tribunals.

@tinsel79 earning minimum wage, does not make us less entitled to fair treatment and legal pay.

What happened to you is not OK! I would be reporting that to the police.

@tinsel79 Searching, yes, but I find it hard to believe that your employer can legally make you remove your clothing and leave you in just your underwear!

Blimey Tinsel, it doesn’t matter that it’s in your contract that you can be searched. What your manager did was illegal and exploitative and you should report him to the police.

Nobody can ask you to take all your clothes off so you can be searched unless they’re the police.