Help pls: term time pay & holiday mess/confusion part 2

[Shoppaholic]

Full time employees work 35 hours per week per annum and get 30 days holidays (22 plus 8 bank holidays) so if you take off their leave, they effectively work 46 weeks per annum. I earn £22000 pa pro rata to 40 weeks term time and I work 28 hours over 5 days. HR says my annual leave entitlement is 4 weeks and this is paid in my salary spread over 52 weeks. Apart from the May Bank Hol, I don't get any leave I can take during term time.

Further to my prev post a bit further down, my HR is refusing to budge saying their calcs are right. I'm sure they're not. I've rang a few local employment lawyers for advice but funnily they've all said they can't do the calcs for holiday entitlement without the business link calculator which isn't working. I find this very odd.

Can anyone advise what I can do as we are a small private business? Thanks. I need to establish my annual leave entitlement and pro rata salary with proper guidance as HR's figures don't tally with mine.

FT: 35x52=1850 hours per year
You: 28x40=1120 per year
1120/1850=60.54%
60.54%x30= 18.16 days holiday assuming a 7 hour day
18.16x7=127.14 hours holiday
127.14/28=4.54 weeks holiday
Assuming your 28 hours are even over the 5 days so 28/5=5.6 hour days
127.14/5.6=22.7 days holiday

Except that's not right as the ft workers only actually work 46 weeks.

FT:35x46=1610
you:28x40=1120
1120/1610=69.56%
69.56%x30=20.87 days assuming a 7 hour day
20.87x7=146.09 hours holiday
146.09/28=5.21 weeks holiday
Assuming you do 5.6 hour days
146.09/5.6=26 (5.6 hour) days

And I would probably assume my second calc is also wrong given the time and a couple of glasses of wine!!

I posted on your other thread. I am child-free tomorrow because ds is in nursery and I'm not chasing a work deadline.

I will draft you something - I haven't forgotten I just need to be able to use the computer without the toddler slamming the lid on my fingers and holding the sofa hostage with a chocolate biscuit in protest at the lack of attention concentrate.

Thanks both, v grateful for your responses and they both put a smile on my face early this morning. My/DS/BIL/your calcs all seem to indicate the same percentage: 5.21/5.22%.

Perhaps my first calc illustrates where HR are going wrong, forgetting that the ft staff won't actually work all of the 52 weeks?

PT holidays are a nightmare to work out, HR got mine wrong as they couldn't get their heads round me going part time mid year.

Yes I think that's exactly where they're going wrong but they are adamant they are not wrong! They can't do the maths and think following a set formula makes their calcs right! But then calculating the holiday incorrectly is knock on for my salary. I questioned this a couple of years ago but was fobbed on. Older and wiser now so not gonna let this one go.

Ok I'm going to make a drink and then I'm going to tackle this...

Your salary has been prorated to term time only. So you need to scale down the full time annual leave to term time then scale down again for your hours per week?

You can't compare the full time leave on a like for like basis until you do that?

I think if you were working full weeks it would be more straightforward. It's not an easy calc so not surprising they can't get their heads round it!!

What I think they are actually doing wrong is stopping at step 4 in my calc and saying that 20.87 days = 4 weeks, but your weeks are 28 hours long rather than 35, so they need to ratio it up by 35/28.

Which I guess is a bit hard to get your head round that a 28 hr week means more weeks holiday than a 35 hour week!! It might be easier to illustrate in terms of hours than weeks?

Here goes :)

FT is 35 hours per week, 52 weeks per year = 1820 hours per year.
Of which 30 days x (35 hours / 5 working days) = 210 hours are annual leave or bank holiday.

For your contract, you work 28 hours per week, 40 weeks of the year = 1120 hours. You therefor work 1120 hours / 1820 hours = 0.615 of the FT contract.

Your Annual Leave (incl BH) is therefore 0.615 x 210 hours = 129.231 hours. Since all your working days are uniform length at 28 hours / 5 days = 5.6 hours, 129.231 hours leave equates to 23.077 of your days. You must lose one of those days for every bank holiday that falls during your 40 weeks as all these calculations combine AL and BH together.

I'm pretty confident of my calculations

I meant to add, most big (public!) organisations do annual leave and bank holidays in hours for PT staff. You'd then get 129.231 hours and take them in blocks of 5.6 hours, including on Bank Holidays.

There is an implied assumption here that you are paid for bank holidays. I think there is a loop hole whereby employers don't have to give you bank holidays if you wouldn't normally work them, but if the rest of the employees are paid the same amount per month regardless of the number of working days in the month, their payments imply they are paid for every day of the month whether weekend, bank holiday or working day.

Happy you need to do (1820-210)/1120=69.5% to compare like with like. You've made the same mistake I did in my first calc.

Sorry 1120/(1820-210)=69.5%

Before you send anything along these lines have a think about what you want to achieve and be prepared to be very unpopular for a bit... Also you "independent advice" is us on here but they don't need to know that.

They should treat a letter like this as a grievance without you having to specify it should be treated as a grievance which means you would have a right of appeal if you do not agree with their decision and any resulting resolution. You may wish to spell out that it is a grievance by putting that in.

Can you check the details thoroughly and if anything doesn't look quite right let me know. I'm working from both your threads and the information is quite spread out. I'm also not a lawyer - I'm an HR consultant - but this should be good enough for a grievance so long as the facts are correct. Hopefully some of the board regulars will cast an eye over to check I haven't made a silly mistake.

If you do not get the result you want (ie they say you were wrong and offer you a settlement to resolve this) then you will have to make a tribunal claim if you wish to pursue the matter further. You have a limited amount of time to do this, specifically 3 months less 1 day from the date you receive their decision. You would do this by completing an ET1 form and you can do this yourself or use a solicitor. There may be an issue with the government regulations not being available but you can still put in a claim.

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Dear [employer name]

It has recently come to my attention that my holiday entitlement has been incorrectly calculated and that I have suffered a detriment as a result. I have tried to raise the matter informally, as is my preferred method, but this has not led to a satisfactory resolution, so I now request that you review the matter formally.

I have taken independent advice and I understand that the current arrangements, as I understand them, breach the following Acts: The Working Time Regulations 1998 (specifically The Working Time (Amendment) Regulations 2007); The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000; The Equality Act 2010; and The Employment Rights Act 1996.

Full time employees are on holiday for 13.04% of their contracted hours per year. As a part time employee I should also be on holiday for 13.04% of my contracted hours per year. As I am required to be working (ie not on holiday) for 40 weeks per year this means that I should be employed for 113.04% of 40 weeks to receive the correct holiday entitlement. This works out at 45.016 weeks paid per annum to allow for the one day of holiday that falls during my 40 working weeks.

I should be paid for additional weeks on top of the 40 weeks to reflect my holiday entitlement. By my calculations this should be an additional 5.016 weeks (less the one bank holiday, May Day, that falls in my 40 working weeks) based on the fact FTE employees get 30 days holiday per annum. However, according to HR I have only been getting 4 weeks which is 1.016 weeks short. I understand this failure to pay my holiday allowance correctly is an unlawful deduction of wages as per The Employment Rights Act 1996.

I have been informed by HR that the calculation they have used which only gives me 4 weeks of holiday is worked out as follows: 40/52x22 (22 being the FTE holidays) = 17 days. This is incorrect because it does not give me the same holiday entitlement to start with as a full timer - which is a breach of The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. It also does not give enough holiday to comply with The Working Time (Amendment) Regulations 2007 which have required all employers to give full time employees a minimum of 5.6 weeks holiday per annum since 1 April 2009 with those weeks pro rata'd for part time employees.

It has also come to my attention that full time employees are benefiting from additional days of paid holiday over the Christmas/New Year period. As a part time employee I am excluded from this benefit and understand I should be receiving a pro rata'd benefit to ensure The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 are complied with, but also that failure to give equal benefit to me as part time worker is potentially indirect sex discrimination as per The Equality Act 2010. I understand I should receive 87% of whatever benefit full timer employees received because my employment contract should be for 45.016 weeks compared with 52 weeks for FTE employees.

I therefore request that I am compensated for the additional leave that should have been paid for the last X years plus interest. I have worked it out using the weekly rate of £337.31 because there are 52.177457 weeks in a year and FTE salary is £22,000 per year and my working week is 0.8 FTE. This is £342.71 (1.016 weeks holiday) for each year which means I have been underpaid by £XXXX over the last X years.

I also request that I am compensated for any additional paid holiday that has been given to full time employees over the Christmas/New Year period.

Yours sincerely

Shoppaholic

My working out from the other thread:

If I assume full time staff get 30 days in total I calculate it like this (although it is very late so I'll need to check this with fresh eyes and brain tomorrow):

FTE get 6 weeks holiday per year. So I calculated the percentage of time off on annual leave as 13.04%. The 13.04 per cent figure is 6 weeks' holiday, divided by 46 weeks (being 52 weeks - 6 weeks). The 6 weeks are excluded from the calculation as the worker is not at work during those 6 weeks.

Then I calculated 113.04% of 40 weeks which is 45.216 weeks. I would expect this to be your actual contracted annual weeks.

Then because you only work 28 hours and FTE is 35 I worked out how much you would get if you worked a full year ie 52 weeks (22,000/35) x 28 = £17,600.

Then to work out the actual annual salary I take £17,600, find the weekly rate and multiply it by the number of contracted weeks (17600/52) x 45.216 = £15,303.88 (rounded up to whole pence).

So I get £15,303.88 which would presumably be paid in 12 equal instalments which is £1275.32 gross per month.

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I later added the point about deducting bank hols that fall in term time. I think this agrees with HappyAs but I'm worn out after doing that letter so i'll let someone else check!!

Full time workers accrue holiday at a rate of 30/52 days per week

So you should accrue holiday on the same basis, scaled down for your hours:

40 weeks 30/52 28/35 = 18.46 days leave.

It would be wrong to compare the OP's hours before annual leave is taken to full time workers afte annual leave is taken. You are paid for the holiday so you treat as part of your hours worked. If someone didn't take any holiday, they'd still work 52 weeks.

Your calculation is wrong Iggly but the other bits are right.

The OP also accrues leave whilst on leave. Working it out in percentage terms as I have makes it easier to see. It's the same calculation as used for working out casual workers holiday.

Leaving the calculations in weeks is fine because the OP works a full week, just shorter days.

Looking at it simply.

Full timers get paid for 1820 hours, they work 1610 of these, 210 are holiday.

210/1820=11.5%
210/1610=13.04%

Her holidays should be in the same proportions:

146/1266=11.5%
146/1120=13.04%

She should be paid for 1266 hours if she works 1120 hours.

146/28=5.21 28 hour weeks.

Most of you are using 11.5% of the time she works rather than 11.5% of her total paid time.

Katie I agree with your holiday and pay calcs.

1266/1820*22,000=15,303 ignoring rounding.

Yes Katie I can see where I went wrong!

Thank you to everyone who has taken the time and trouble to respond to my post. Katiemiddleton, big thanks to you for the fab letter you've drafted. Gonna sit down with DH over the weekend to collate this info and send it to HR although HR have said they are investigating and will come back to me so maybe not word it a "grievance" just yet, do you think?

At least all our percentages/figures tally, so it feels good that I hadn't imagined my bosses had got my salary wrong.

I'm hoping this might help other people out there in similar situations. Massive thanks again, will post back once I know more.