HR question - if you regularly work overtime and holiday pay

[OvertimeThinkTank]

Sorry not AIBU but I know this area is busy so might find the answer I need, if not could you point me in the right direction please.

I’m contracted to work 3 days a week but since March of last year, I’ve been working 5 days. I agreed to do this but didn’t want to make it permanent incase I needed to drop the days again, so the 2 extra days a week are classed as overtime, if I don’t work either of those 2 days, for hospital/GP appointments for example, I don’t get paid and wouldn’t expect to.

Holiday time is coming up and as usually happens, I just get paid my 3 days but it’s got me thinking. As I’ve been now regularly working extra days, over 12 months, should my holiday entitlement reflect this?

I’ve been employed by the company for over 10 years.

Has anyone else been in this position?

Oops, meant to disable the voting!

Your holiday ENTITLEMENT doesn’t change, but your PAY does.

Your employer should calculate your pay based on an average of the previous 12 weeks earnings, excluding any non working weeks. So if you take a weeks leave, you’re entitled to take it as 3 days’ holiday entitlement, but paid for 5 days (assuming you’ve worked 5 days for the previous 12 weeks).

(It would be different if overtime was not required and could easily be refused on both sides though)

I manage a company. Contractually (purely from an HR viewpoint) you are only entitled to pro-rated holiday pay (as per contract). If you were my staff though, I would acknowledge your input over the last year and give you a bonus to make up for that. There should be a recognition that in practice you worked full time for 12 months and therefore should get compensated for full time holiday pay over the corresponding period. As they haven't changed your contract, it's entirely up to them but I hope that's how they will see it too.

Thank you both.

It’s only a small business and there isn’t an HR Department, so I don’t really have anyone to ask for advice at work.

I need to have a discussion with the Director (when he’s in) to see if he would look favourably on this. If you don’t ask, you don’t get.

I work for the NHS. Our overtime comes with some sort of enhancement (usually paid a month or so later) which covers AL. It is on our pay slip as a separate item, and is calculated so that although we don’t get additional AL as such, we get this payment which makes up for that.
I don’t really know how to explain it though!
DH used to be on a zero hours contract and his hourly rate was enhanced to cover sick payment and AL as he didn’t get separate entitlements - I suppose it was like that.

Thanks @Nixbox that makes sense.

I will ask the question, see if anything can be put in place.

I hope that the “bonus” you’re paying is equal to or more than the holiday pay they’re entitled to implied by common law, or you’re risking a claim being made against you!

Its settled law that holiday pay should be calculated on the previous 12 weeks earnings and the contract can’t override that. OP is likely to be entitled to pay based on her actual hours worked since the law changed a few years back.

@MrsPinkCock thank you! Is there a link to this or anything I could show my Employer, just to add some weight to my proposal?

www.gov.uk/government/publications/calculating-holiday-pay-for-workers-without-fixed-hours-or-pay/calculating-holiday-pay-for-workers-without-fixed-hours-or-pay--2

She does have fixed hours. I think that link is for zero hours workers. I'd recommend ringing acas for advice

@imnottoofussed thanks, I’m thinking that’s the best idea! I do have fixed hours but have worked additional hours every week for over 12 months so seems wrong that my holiday pay doesn’t reflect my normal hours worked.

I’m an employment lawyer, it doesn’t just apply to zero hours workers, it applies to (almost) any employee working regular overtime.

@MrsPinkCock Is there a link I could share with my employer regarding this. I can’t seem to find anything definitive online, nothing if my contract only states a certain number of days.

You need better HR advice…holiday pay should be based on average earnings over the previous 52 weeks, regardless of contacted hours, and should include commission / overtime. If they’ve not been employed for 52 weeks then it’s the length of time they have been.

@Tryingtokeepgoing if I could find something concrete online that states this that would be good.

As you've been doing the 5 days for over a year it should be classed as an agreed change to your contract in which case your holiday entitlement (& pay) should be increased accordingly.

Holiday pay is calculated on your hourly rate x hrs a day worked.

www.acas.org.uk/changing-an-employment-contract/advice-for-employees

It may be time for you to get advice from an employment specialist lawyer. The law on holiday pay changed a good few years ago.

Holiday pay changed under the good work plan in April 2020. Your holiday should be calculated as an average of your wage over the last 52 weeks in a 104 week reference period.

Email your employer and ask them to calculate your annual leave correctly

Did you say you had declined full time hours because you want the flexibility of saying no? I think if it is your choice as opposed to a work expectation, I don't see why you would get extra holiday. Is that not having your cake and eating it? I found when I worked part time it was quite hard to use all my annual leave because I had 4 days a week to do things when I did not have to work.

@vdbfamily I did decline, as I have a regular hospital appointment that I need to attend every 8 weeks, that I always go to on one of my 2 non contracted days, I was wary of committing to 5 days because of this and other reasons.

I have however worked 5 days a week on a regular basis for over a year.

Perhaps I should have just changed my contracted days to 5 and then there would have been no issue.

Plus, I think it’s now a given that I’m working 5 days a week!

I would ask to change my contact to fill time and use the extra paid A/L to attend my appointments.