Holiday pay for additional hours worked.

[jorlaleaf]

Any HR/legal peeps? I work part time work for the NHS and have a fixed number of contracted hours. Recently for a period of 3 -4 months I worked an additional 10 -12 hours per week (still under full time hours per week). These additional hours have now stopped. I have queried as to whether I should receive holiday pay for the extra hours worked in addition to my normal holiday pay entitlement. However, HR have said no! Is this correct?

Don’t quote me but I thought not if salaried but yes if paid per hour.

I actually think you are entitled to this within the NHS, so definitely keep pushing.

Did you work the extra hours through your trusts Bank?

I might be wrong, but I'm sure if you work it through the Bank you accrue holiday entitlement but if it's just overtime in your pay packet then you don't!

As I said I may be wrong, but Bank Partners paid my my accrued holiday a few months ago from overtime that was processed through them.

It's complicated. But HR are probably correct. If you have regular contracted hours as an employee AND it is compulsory overtime then the answer is always yes - overtime counts towards holiday pay. But if you have regular contracted hours as an employee and you volunteer to do the overtime then only regular overtime is counted towards holiday pay. I don't think 3 or 4 months would qualify as regular, but the only way to ascertain that would be an employment tribunal (and probably higher courts because the NHS would fight it if they lost). If you are bank staff - in other words casual hourly paid - then the answer is again yes, it counts towards holiday pay.

When I did a lot of overtime a few years back I didn't accrue extra holiday but when I booked a week off I got paid 48 hrs rather 37.5 because that was the average I'd worked over the preceding qualifying period.

I think based on how you've phrased it here that HR are right that you haven't accrued extra holiday, but if you'd taken time off you'd have been paid more for that week than your contacted hours.

Thanks for your reply. I didn't receive any additional pay or any additional holiday. I think I worked about an extra 160 hours in total across the 3-4 months but they were regular days and times (unless I finished earlier on a few of the days)

Why didn't you get paid for the extra hours?

I don't know if this will be different as I work for the 3rd sector.

I worked double my contract hours nearly every week for 7 months. My manager assumed I should've accrued extra A/L, HR said no. Manager queried this and they did some research. I AM owed extra A/L and they are working out how much for me.

Sorry I meant. I did get paid for working the additional hours but not any additional holiday pay or leave.

You need to be clear if you are working additional hours or overtime.

Additional hours are the hours you work on top of your part time hours up to full time. For example full time is 37.5 hours and your contract is 25 hours. If you work up to 12.5 hours extra these are additional hours. If you work 15 hours then 2.5 hours are overtime.

Additional hours may increase your annual leave. So if you take 2 weeks leave instead of being paid for 10 x 5 hour days you are either paid 10 x 7 hours a day or get extra leave. Hourly rate £15.

Overtime increases your hourly rate for holiday. So you are paid 10 x 5 hour days but at £17.50 per hour.
Note: I have used example figures.

As you worked additional hours you are entitled to extra leave. This should be calculated and added to your leave.

The calculation to do this is time consuming but not complex. Forgive me for not doing it.

The relevant legislation is the Part Time (prevention of less favourable treatment) regulations.

I work for the NHS and we automatically get extra pay in lieu of holidays for any overtime or additional hours. It appears on the next payslip and is called something like overtime adjustment.
Contact payroll instead of HR.

@Nixbox that sounds like rolled up holiday pay which is unlawful.
www.gov.uk/holiday-entitlement-rights/holiday-pay-the-basics

workingfamilies.org.uk/articles/rolled-up-holiday-pay/

Case law is clear holiday pay must be paid at the time you take holiday it cannot be paid when you work additional/overtime hours.

@Foreversearch that’s very interesting! DH used to get it as well with a separate (and large!) employer when he was on a zero hour contract.
For me, I don’t mind because I don’t do much overtime so it is an extra tenner-ish added on every so often to my wages.

Holiday pay has become a bloody nightmare to work out for staff who do not work fixed hours. It's supposed to be worked out by weekly hours. The reality is that it's impossible to predict - and that suits nobody. I wish they'd sort this shit out - it's one thing to insist on highly paid contractors going through payroll but zero hours is a complicated alternative - the holiday pay is just nonsense no one wants - they want to agree their pay .and whilst they work variable hours it's impossible to agree on a rate in advance.

I'm NHS bank zero hours contract (semi retired) I get paid in lieu of annual leave, it comes up as WTD (working time directive) on my payslip but when I was part time, and did extra hours, I also got this added on as do other substantive colleagues who do extra hours. I'm sure it is a legal requirement to get annual leave (or pay in lieu of it) which roughly works out to the equivalent of two days per month if you were full time.

@lipstickontheglass The issue is always data collection. If you have the right data captured promptly you can configure a payroll system to pay it.

@Mossstitch see my previous post it is unlawful.

Go to your TU rep and ask them to sort it as it impacts the whole workforce.

Well the payroll with holidays is worked out on historical data - our contractors and our clients want rates that don’t vary. I don’t see who this is benefiting as none of the affected parties are happy with the situation.

@lipstickontheglass they may want that but they are breaking the law.

Employees are legally entitled to have their pay calculated correctly. Variable pay is just that and the Employments Rights Act sets out how to calculate average pay when an employee receives variable pay.

You do realise how ridiculous that sounds or maybe as the you don’t? The law is an ass! It needs to change. Zero hours contracts do not work for highly paid experts - hopefully the Gov will find the time to fix this fuck up.

Thank you for the explanation but it actually suits me as it is so I won't be contesting it. I choose to be on a zero hours contract and I don't take annual leave i just work hours when they are short staffed which suit me and prefer any annual leave owed to be added to my pay. If I wanted time off I would just say I'm not available to work.

@lipstickontheglass I’m not sure which bit of the law you think is an ass, allowing zero hour contracts or the method of calculating variable pay or both?

@Foreversearch does it work out differently in the end? Surely each method gives the same amount of money, but distributed unequally. Or am I missing something?
In the NHS they make sure that we take at least the minimum amount of AL as required by law, so that law isn’t being broken.

This BUT I think that 3 - 4 months overtime is quite regular actually

The problem is that "regular" is not defined in law. So if they have said no, then it is up to the OP (and their union?) to be ready to take it to a tribunal and the superior courts. I say that based on the fact that the current mess of a law actually arises from a case taken by ambulance drivers and the employers fought it all the way. And, of course, if the OP isn't in a union or the union isn't able to support the claim, it's going to be an expensive and lengthy journey. I'd be surprised if this hasn't been tested already. Not a reason not to try, but equally, that depends on whether the OP is ready to try it out. Because it will almost certainly quickly become moot as they won't be getting any more overtime. I don't like it, but people have to pick their battles and only the OP can decide whether this is one for her.

@ChocSaltyBalls it isn’t overtime it’s additional hours. They are different.
@Nixbox its unlawful because an employee is receiving less money when they take leave. If the NHS ensure that everyone takes statutory annual leave great.