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?

@Quveas , I agree if the op was working overtime but she isn’t. Additional hours are treated as though the op has increased her hours up to full time. A full timer is paid for those hours and gets associated benefits and it’s discrimination if the op doesn’t receive them.

I'm interested in your posts as where I work they have taken exoert advice on this and been told that hours worked above the contracted amount don't accrue extra holiday entitlement unless there is a contract change for an agreed time

Are you an employment solicitor, is it worth me challenging this?

Can you provide the case law / employers terms for that please? Because a full-timer would not get additional holiday pay as a result of overtime, except in the circumstances I have described. You appear to be relying on semantics - calling it additional hours rather than overtime. There is no legal definition of either term. I am happy to be proven wrong, but as far as I am aware - and I checked the current law - what I have said is correct and supports the views of the NHS HR.

I'm also interested because our union also took advice - from one of the country's top employment law barristers. And what I have said is what we were told - this is UNITE - and we were told that unless there was substantial proof of regular overtime (more than a few months) the case would not be worth fighting as we would probably lose.

If you have taken legal advice then I am not in position to challenge.

What I can do is explain my rationale and if you feel it stacks up take it back to your

The Part Time Workers (Prevention of Less Favourable treatment) Regulations 2000www.legislation.gov.uk/uksi/2000/1551/regulation/5/made

“Less favourable treatment of part-time workers
5.—(1) A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker—
(a)as regards the terms of his contract; or
(b)by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.
(2) The right conferred by paragraph (1) applies only if—
(a)the treatment is on the ground that the worker is a part-time worker, and
(b)the treatment is not justified on objective grounds.
(3) In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate.
(4) A part-time worker paid at a lower rate for overtime worked by him in a period than a comparable full-time worker is or would be paid for overtime worked by him in the same period shall not, for that reason, be regarded as treated less favourably than the comparable full-time worker where, or to the extent that, the total number of hours worked by the part-time worker in the period, including overtime, does not exceed the number of hours the comparable full-time worker is required to work in the period, disregarding absences from work and overtime.”

I have highlighted the relevant paragraph.

The government advice www.gov.uk/holiday-entitlement-rights is that
“Irregular hours - People working irregular hours (like shift workers or term-time workers) are entitled to paid time off for every hour they work.”

If full time is 37.5 hours and get 28 days statutory leave x 7.5 hours = 210 hours @£15 per hour. Note: 37.5 x 52.18 weeks = 1956.75 annual hours

A part timer working 25 hours ( 5 hours a day) is entitled to 210 /37.5 x 25 = 140 hours @£15 per hour. Note: 25 x 52.18 weeks = 1304.5 annual hours

If the part timer works 10 hours extra for 16 weeks = 160 hours their annual hours + 1304.5 = 1464.5. So leave entitlement becomes 210/1958.75 x 1464.5 = 157.17 @£15 per hour. 17.7 hours paid leave x £15 = £265.5 less paid leave.

The op may have a part time contract of fixed hours (25) but they are working irregular additional hours (not overtime) which over a year = 1464.5 /52.18 = 28 hours a week or 5 hours 36 minutes a day. Each time they take a days leave they are paid 5 x £15 rather than 5.6 x £15 so effectively their hourly rate is £13.39 which is less favourable than a full time employees.

Note: this does not apply to overtime as full time employees don’t get extra annual leave.

The basic premise is does a part timer get exactly the same £ and benefits for each hour worked as a full timer does. For the odd extra hour it’s not an issue but 10 hours a week for 4 months is.

@Quveas its not semantics, as per the extract of the regulations I posted (4) means if a part timer works more than their contracted hours you are allowed not to pay over time rates e.g. x1.5 or x2, until they have worked full time hours. However if you pay their standard rate it attracts the benefits a full time worker gets for those hours worked.

The best way to think of it is if FT = 37.5 hours and an employee works 45 hours they are paid 37.5 hours at standard rate and 6.5 hours at overtime rate. A part time employee who works 45 hours is paid 37.5 hours at standard rate and 6.5 hours at overtime rate. You wouldn’t pay 25 hours standard rate and 20 hours overtime rate.

It sounds like the same advice that my employer has had although not via unite

It doesn't seem possible that the experts would be a wrong and a random peraon would have spotted something they haven't does it?

@Quveas @TimeForMeToF1y I should have said I am not a lawyer but an HR professional who was a pay policy technical expert. I convert HR policies into pay rules for payroll. Most of my career was problem solving how an HR policy impacted pay whilst ensuring we remained legally compliant and did not inadvertently discriminate.This was particularly challenging when senior managers/perm sec made a decision and I had to find a way to pay it.

I long ago realised if you don’t calculate annual leave in hours you can inadvertently discriminate.

@jorlaleaf hopefully my calculation helps.

@Quveas @TimeForMeToF1y I completely understand to you I am a random but for my part time employees/members it’s worth a question to your lawyers.

Note: Not that complex to do for holiday pay and holiday entitlement as the pay system has to hold the necessary data to pay additional hours and overtime. The only additional info is the date the employee takes leave.

I think I will take the advice of our union's barristers. I may not like it, but I do believe that they are best placed to understand the law and the risks involved.

I have looked at your rationale and I believe it to be fundamentally flawed because you have based your rationale on the wrong legislation. You are arguing that full time workers would get extra holiday pay if they worked overtime. This is not true. I have already pointed out that the law ONLY uses overtime for full time workers as part of the holiday pay calculation if the overtime is regular or compulsory. The same applies to part-time workers (those on contracts with specified hours, not those on casual employment) - it must be included in the calculation for holiday pay if the overtime is regular or compulsory. Compulsory is easy to define - regular is not. There is no clear legal definition of what regular means - and therefore the only way to clarify this, since the entire things is based on case law, is to establish more case law. That means that the HR position is not "wrong", and nor is the OP's. It is unclear. Frankly, the law is a mess on this matter, as it often gets when case law is involved.

I am not prepared, based on expert legal advice we have had, to tell the OP that HR are wrong. I am prepared to say that I think your rational is based on the wrong law in this instance, because you are assuming a legal right for full-time workers that does not exist. The OP can certainly go back and try that argument, but I suspect that the answer will still be no, because it is hard to determine what that "regular" means.

As I said, if the OP is in a union then that is the place I would be going, because (a) they have more chance of arguing the case, espcially if they know there is precedent with the employer and (b) if this can be clarified legally then they are the people who will want to do it. In our case it wasn't NHS terms that we were questioning (but it was other public sector) but UNITE has many NHS employees, and generally has a taste for battle (unlike some unions). If we could have established legal precedent, I am confident that we would have because it would have a massive impact on our millions of part-time workers who are more often than not adversely impacted on by this situation. I am more than happy to raise the matter again but I doubt the answer will have changed - especially given the likelihood of massive unravelling of workers rights when European driven employment law starts unravelling.

@Quveas I have looked at your rationale and I believe it to be fundamentally flawed because you have based your rationale on the wrong legislation. You are arguing that full time workers would get extra holiday pay if they worked overtime. This is not true.

You have completely misunderstood my rationale. I agree with you that overtime worked above FTE hours does not attract extra annual leave but may, depending on type of overtime, be eligible for holiday pay which must be paid when the employee takes leave. Full and part time employees are treated equally.

My rational is that additional hours part timers worked up to FTE are not overtime, they are the same as the hours a full time worker works up to FTE and so attract extra annual leave. The part time workers prevention of less favourable treatment regs is the right legislation for @jorlaleaf.

In your position I would also be sceptical but in my experience in cases like this the test case is usually a FT employee and the assumption is there is no additional consideration for part time employees so no one looks at the OPs scenario.

When you present this to your TU/Legal team please do this on the basis that this is not overtime but additional hours up to FTE. The NHS employers handbook uses the term additional hours at 3.3 www.nhsemployers.org/publications/tchandbook
“Overtime payments
3.1 For the purposes of this section 3, overtime is those hours worked in excess of 37.5 per week. All staff in pay bands 1 to 7 will be eligible for overtime payments. There is a single harmonised rate of time-and–a-half for all overtime, with the exception of work on general public holidays, which will be paid at double time.
3.2 Overtime payments will be based on the hourly rate provided by basic pay plus any long-term recruitment and retention premia.
3.3 Part-time employees will receive payments for the additional hours at plain time rates until their hours exceed 37.5 hours in the week that the additional hours are worked.
3.4 The overtime rates set out in 3.1 above will apply whenever overtime hours are worked, unless time off in lieu is taken, provided the employee’s line manager or team leader has agreed with the employee to this work being performed as overtime.
3.5 Staff may request to take time off in lieu as an alternative to overtime payments. However, staff who, for operational reasons, are unable to take time off in lieu within three months must be paid at the overtime rate.
3.6 Senior staff paid in pay bands 8 or 9 will not be entitled to overtime payments.
3.7 Time off in lieu of overtime payments will be at plain time rates.”

Why if the op is only entitled to plain time rates rather than overtime rates are they not entitled to the contractual benefits that come with plain time rate but not overtime rates?

I don't have time to keep discussing this with you. You are still ignoring the fact that ANY voluntary overtime, to be counted towards holiday pay, must be regular, a term for which there is no legal definition; and that until such a definition is established in law the entire matter is a grey area - whether or not you work fulltime or part time. To me the issue is whether they are regular, not what you call the hours in excess of contractual obligations.

I will believe an exceptionally experienced and well known barrister over some random person. And I have already said that our advice was not based on the NHS terms but I would have thought the union would have looked at this as we have loads of members in the NHS. I would find it hard, however, to believe that all NHS unions would not be all over this given the amount of money that would be involved for their members. But the OP is welcome to take your rationale and try to get it actioned, or consult with their own union.

@jorlaleaf I have spent a bit more time looking at the NHS Handbook www.nhsemployers.org/publications/tchandbook

I think the basis of your request should be paragraph 13.9
“13.9 Pay during annual leave will include regularly paid supplements, including any recruitment and retention premia, payments for work outside normal hours and high cost area supplements. Pay is calculated on the basis of what the individual would have received had he/she been at work.

• For staff who have regular hours the reference period should be based on the previous three months at work or any other reference period that may be locally agreed.
• With effect from 06 April 2020, for staff who have irregular hours the reference period should be based on the last 52 weeks. When calculating the 52 full weeks of pay, employers are limited to referencing the previous 104 weeks from the date the leave begins.”

The additional 10-12 hours you worked each week were not overtime hours as defined in para 3.1 but additional hours as defined in para 3.3. and therefore should be included when calculating your holiday pay as per para 13.9

@Quveas regular is irrelevant to additional hours.

In relation to overtime you are right there is no legal definition of regular but given para 13.9 allows a 3 month reference period and the op worked 10-12 additional hours(not overtime) each week totalling 160 hours over 3-4 months I would suggest it would be fairly hard to say not regular.

FYI - I’m not NHS but I would be sitting the opposite side to the TU and if you didn’t ask you didn’t get. Not remembering additional hours (not overtime) is a miss my TUs have made in the past.

Thank you so much for all the replies. Your advice has been really helpful. I will speak to HR again.

@jorlaleaf how did you get on?