Feel like I'm going mad - DP's holiday pay

[MamaMoonbeam]

I feel like I'm going mad trying to explain to DP's employers that they can't pay bank holidays at a flat rate when it's part of my DP's statutory annual leave. The other holiday days are calculated using the 52 weeks previous earnings...

MN please can you put my mind at rest - am I right or is DP's employer?

Does it not depend the contract?

Of course they can pay bank holidays at flat rate, if thats what overtime is paid at on that day.

What does his contract say?

I’m curious - why are you speaking to his employer about this, is he incapacitated? If not, I’m surprised they are willing to discuss this with you.

It's not overtime. They don't usually work bank holidays and employers have chosen to include them in their employees statutory 28 day annual holiday entitlement.
Contact does not state bank holidays are paid at a different rate

@BornIn78
He's not incapacitated, he's a crane driver and not as articulate as myself when it comes to payroll and holiday matters. I have also worked doing payroll and hr stuff but not for a while so just wanted to check.

If you're thinking it shouldn't be flat rate because of e.g. commission/overtime rules then that only has to apply to 4 weeks of leave entitlement, and on that basis bank holidays can be paid at a flat rate.

www.acas.org.uk/checking-holiday-entitlement/calculating-holiday-pay

Yes they can be paid at a flat rate. My Bank Holidays are included in my overall leave entitlement but, if I work them, I am paid a flat rate and take a day off in lieu.

Is this what you mean OP?

@DachshundDerby he generally doesn't work bank holidays, when he does he gets paid what he works and a day in leiu.
But, the company are saying that bank holidays are paid at a flat rate regardless.
I thought if you have to take bank holidays as part of your statutory 28 days annual leave, that all of those days are paid at the same holiday entitlement rate?

I think he needs to sort it out himself.

@user1493494961 so helpful...

holiday entitlement rate what rate do you think this is compared to basic rate?

He gets paid more for holidays?

@londongram Holiday pay calculated using his last 52 weeks earnings and applied to any holiday taken as part of his 28 days statutory holiday entitlement.

@iklboo yes, so essentially his usual holiday rate would be say, £150 per day but they're saying bank holidays are paid at a flat rate of £90 per day even though they're both part of his statutory annual holiday entitlement

The ACAS link I posted it explains why the 8 bank holidays can be paid differently to the 20 days annual leave, regardless that it is all statutory leave.

I'm assuming your husband works irregular hours. If that is the case, they should be using his average pay over the previous 52 weeks to calculate holiday pay regardless of whether it is a public holiday or not. However, they do not have to include overtime, commission or bonuses in their calculation. If they are paying a flat rate that is less than that calculated on his previous 52 weeks earnings, your husband has a claim for unlawful deduction of wages. Refer them to the ACAS page redmimi has linked above.

Thank you @prh47bridge that's what I thought! I probably haven't worded it very well.

I am going to assume your husband only gets statutory 28 days leave including bank holidays.

Case law says the four weeks (20 days) regulation 13 leave is based on average earnings including regular overtime and commission.

The additional 1.6 weeks (8 days) regulation 13a leave is based on average earnings excluding regular overtime and commission. It is more complex than this but @prh47bridge is correct, refer to ACAS.

FYI, This is set out in Working Time Regulations and Employment Rights Act.

If that really is the case, he just won't take those additional statutory days holiday as he'll be out of pocket - just doesn't seem right... 😔

I think you misunderstand Margaritatime. She is essentially saying the same as me. Bank holiday pay must be paid based on the previous 52 weeks earnings excluding overtime and commission. If your husband doesn't get any overtime or commission, his pay on bank holidays should be identical to his pay on other days off.

@prh47bridge his "basic" day is supposed to be 8 hours (that's what his company says) but he, literally, never has an 8 hour day. His average day is 10+ hours. He works 10-20 hours a week extra in overtime that is compulsory due to the travel time to and from site in the crane.

OP what does your husbands contract state about overtime? If his employer has to offer it and he has to work it I.e. the travel time is compulsory then I think that is different and it should then be included when calculating BH. Check the contract and with ACAS.

Note: there are 3 types of overtime/travel time and it is important to understand which applies:

1. Contract requires employer to offer it and employee must work it = contractual
2. Employer not required to offer overtime but if they do then employee has to work it = non-guaranteed
3. Employer not required to offer overtime but if they do employee can refuse = voluntary.

If he is docked wages for being off sick how do they calculate it?

@Margaritatime "in order to help us maintain optimum service levels, you are required or expected to work the additional hours needed in the course of providing the crane hire services required by customers, a large proportion of which is outside normal working hours.. You will be paid only for time worked." From the staff handbook, and from his contract "in addition to these hours [40 hour work week], you will be required to work a reasonable amount of overtime when necessary"
Just that

I find it weird that you are explaining anything to your DP's employers.