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AIBU?

Share your dilemmas and get honest opinions from other Mumsnetters.

Original poster

Holiday Pay

22 replies

BeachWishin · 28/08/2020 23:59

Any advice welcome!

I was working as a nanny from January this year until the beginning of August. Stupidly, there was no contract.

When COVID-19 hit in March, I was no longer needed by the family as they were not working. They kept me employed but did not furlough me as they did not qualify for the 80% pay grant 😡 I was paid 20% of my wage.

I resigned in August as I couldn't afford to live on 20% of my wage and wasn't happy with the situation. I took no holiday leave during this so I'm owed holiday pay.

Now my question is, am I entitled to holiday from Jan-August as I was employed for this time or is it just Jan-March as that's when I worked until.

My employer believes the latter. TIA.

YABU - Jan to March
YANBU - Jan to Aug

OP posts:
Original poster
BeachWishin · 29/08/2020 00:21

Bumping

OP posts:
Lockheart · 29/08/2020 00:22

This is not a question for MN. You need to speak to a real life professional.

OnceUponATimeInHollywood · 29/08/2020 00:26

In my job, a few people were furlough between March & July. They still accumulated holiday pay. So I think, even though you wasn't furloughed, you was still very much employed by the family. I would request your holiday pay.

Feminist10101 · 29/08/2020 00:34

HR professional here. If they paid you for those months they owe you holiday pay for those months.

However, the terms of your contract can be argued because they weren’t written down (another legal fault as you were entitled to them within 2 months of starting). If they argue your contractual terms changed to 20% if your usual hours etc in line with pay the holiday pay due for those weeks would be reduced.

www.gov.uk/employment-contracts-and-conditions

Would need to see more of what was said at the time to advise further.

Original poster
BeachWishin · 29/08/2020 11:58

Nothing much was said as I didn't have much of a choice. It was either we fire you or you take 20% as a retainer until we need you again.

I'm just so annoyed because they should have furloughed me but due to their own error, they couldn't claim the grant.

OP posts:
Feminist10101 · 29/08/2020 12:23

Retainer would be unlikely to constitute employment. Was this a PAYE arrangement?

What is written down? (Texts/emails)

underneaththeash · 29/08/2020 12:32

Why did you not qualify for furlough? You should have done as you were employed on the cut off date. It’s not a grant - that’s for self-employed people. It sounds as if They were paying you as a SE childminder?
I would ask for a P45 from them - which will state if you were actually in PAYE.
But, yes as a PP said if you were being paid a retainer, that would not constitute employment.

Feminist10101 · 29/08/2020 12:34

Why did you not qualify for furlough? You should have done as you were employed on the cut off date.

She would have needed to be registered on a payroll by 28th Feb. If she wasn’t she wouldn’t have qualified for furlough.

LemonTT · 29/08/2020 12:40

I don’t think being paid a retainer prevented you from taking holiday or a temporary job. Did you also claim benefits? Because unless you were on a whacking salary, why would you accept this 20% that prevented you from taking a fully paid job and taking holiday.

Florencex · 29/08/2020 12:46

How were you being paid January - March? If you were on a payroll system on the cutoff date in February, it would have been possible to furlough you and claim off the government job retention scheme.

How were you paid between April and August? Again was it via payroll with deductions for income tax and NI? If you were paid like this, then you were an employee and continued to accrue holidays. The employer would have been entitled to tell you to use up those accrued holidays, but they would have had to tell you in advance, they cannot do it retrospectively.

Feminist10101 · 29/08/2020 13:04

If you were paid like this, then you were an employee and continued to accrue holidays.

Not technically. They could well have been a worker rather than employee.

Original poster
BeachWishin · 29/08/2020 14:02

No I wasn't on payroll until March, employet claims they took some bad advice from an accountant? Hmm

I have been getting payslips throughout but no deductions for NI since April. I was part time so didn't earn enough to pay tax.

OP posts:
Florencex · 29/08/2020 14:03

@Feminist10101

If you were paid like this, then you were an employee and continued to accrue holidays.

Not technically. They could well have been a worker rather than employee.

True, although the main point was that if on payroll, she would have been accruing holiday.
Feminist10101 · 29/08/2020 14:06

Have you got anything in writing from the time of the reduction to 20%. Tests/emails? We need to know what you can prove and what wording has been used.

You really aren’t giving us the info needed to help us to answer your questions.

catgirl1976 · 29/08/2020 14:07

They are at fault for not giving you a written contract. However its hard to say without more details about the retainer arrangement - is there nothing in writing?

How much were you earning annually and did they auto enroll you in to a pension?

Feminist10101 · 29/08/2020 14:08

True, although the main point was that if on payroll, she would have been accruing holiday.

Again, not true. Bank/zero hours workers are on the payroll but only accrue holiday for hours worked. If the retainer was paid without any agreement re hours then no holiday would accrue.

Florencex · 29/08/2020 14:10

@BeachWishin

No I wasn't on payroll until March, employet claims they took some bad advice from an accountant? Hmm

I have been getting payslips throughout but no deductions for NI since April. I was part time so didn't earn enough to pay tax.

Well being on 20% salary could have put you below the threshold for NI contributions too. It could also have put the employer below the threshold for needing to make employer contributions.

But if you are sure you have been paid via PAYE, have payslips with your NI number on then as an employee (or worker 😉) you should have accrued holidays. The tricky bit would be at what rate, as you have mentioned there is no paperwork, they could argue that your hours were cut in line with pay and therefore you would only get 20% of the holiday pay you might expect.

Florencex · 29/08/2020 14:12

@Feminist10101

True, although the main point was that if on payroll, she would have been accruing holiday.

Again, not true. Bank/zero hours workers are on the payroll but only accrue holiday for hours worked. If the retainer was paid without any agreement re hours then no holiday would accrue.

How is that not true? I have said she should be accruing holiday, this is definitely true whether an employee or a worker. I have not gone into what rate it would be accrued at.
Original poster
BeachWishin · 29/08/2020 14:13

There was no written contract and no written agreement about the retainer. I have a couple of emails from the beginning about wage and hours and me asking for a contract. But that's it on the written front.

I worked 18 hours a week for over 2 days. This was shown on my payslips. The payslips since March show as 20% of 72 hours.

OP posts:
Feminist10101 · 29/08/2020 14:15

Were you paid 4 weekly? 18 hours a week is 78 hours per calendar month.

Original poster
BeachWishin · 29/08/2020 14:19

Yes it began as every 2 weeks but soon changed to every 4 weeks.

OP posts:
Feminist10101 · 29/08/2020 14:20

You could push them to pay you at 20% of your leave entitlement from March - August but if they refuse you won’t easily win at tribunal due to lack of evidence.

You would have accrued just under a day per month while doing 18 hours a week. So from April to Aug you’d be claiming 1 hour and 40 mins per calendar month.

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