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Flexible Working Agreement Error (by HR)

13 replies

MuddlingThrough1724 · 21/11/2024 17:13

Hoping for some group knowledge please!

I have a flexible working agreement in place, signed over a year ago, but came in to effect in April (I was on maternity leave until that point).

My agreement explicitly states the number of days annual leave I should have. HR seem to have suddenly realised they have made an error and have stated a new entitlement via email.

Am I in a position to argue?

Things are slightly complicated by my agreement containing core hours over 4 days and additional hours that float to suit business needs, which I work as needed (indeed, often work more, unpaid of course) and often/regularly on the 5th weekday as well as at weekends or early and late in the day.

I think that they are treating things as a blanket 4 days a week so pro-rated leave should be in effect, but that doesn't allow for the floating hours that are worked as needed, and more often than not, on the 5th day.

Irrespective of how they've calculated the amount they think I should have, and how they came to the original allowance shown on my signed flexible working agreement, if they made an error but everyone accepted and signed an agreement in good faith, can they now unilaterally reduce my leave allowance?

I'd like to push back, politely, it may be an error, and it is a complicated set up in terms of working hours/days, however, it isn't my error and there is a signed agreement that very explicitly includes my leave allowance. Plus, I'd like to keep my current leave allowance as covering 13 weeks school holidays with only 5 week annual leave is hard enough without them deciding I should have less leave than I thought.

How can I nicely tell them its their error and that I won't willingly accept them going back on or varying my flexible working agreement? I realise they could just pull the flexible working completely (in which case they'd have my resignation), but ideally I want to be firm, polite, but not cause trouble for myself.

OP posts:
Mrsttcno1 · 21/11/2024 17:39

You can’t argue it if it is genuinely miscalculated and a mistake no, regardless of the fact it’s on the agreement people make mistakes. If they have realised their mistake and corrected it in this calculation then that’s not something you can really argue against. If you believe they have now calculated it incorrectly then you can argue that, calculate it yourself and show your workings and put that to them, but you can’t hold them to a mistake if it is genuinely incorrect.

Mrsttcno1 · 21/11/2024 17:41

Assuming that what the flex agreement actually says is the usual that holidays are pro-rata, so it’s not so much the number that you are holding them to it’s the fact it is pro-rata for your working time, so them having got the number wrong isn’t massively relevant as it’s clear the agreement was always for you to be no worse off or better off than full time, just equal based on your working time.

MuddlingThrough1724 · 21/11/2024 18:02

Mrsttcno1 · 21/11/2024 17:41

Assuming that what the flex agreement actually says is the usual that holidays are pro-rata, so it’s not so much the number that you are holding them to it’s the fact it is pro-rata for your working time, so them having got the number wrong isn’t massively relevant as it’s clear the agreement was always for you to be no worse off or better off than full time, just equal based on your working time.

The agreement does not mention pro rata. It lists my core hours and days, my additional hours to meet business needs and explicitly says "entitlement of x days leave for the 2024 leave year".

It may have been an oversight on their part, I assumed no change to leave as there was no change to the hours compared to my previous agreement, just a change to the core hours element but it was part of the basis I signed the agreement.

OP posts:
2gorgeousboys · 21/11/2024 18:11

I think I'd be arguing that genuine error or not, you have made plans based on the number of days they clearly told you for 2024. It then being recalculated to the correct number for 2025 but based on inclusion of floating hours, would seem the sensible compromise.

StormingNorman · 21/11/2024 18:21

The holidays should be prorataed to the number of hours eg if the standard work week is 40 hours and you work 30 hours, you get 3/4 holiday allowance.

MuddlingThrough1724 · 21/11/2024 19:26

StormingNorman · 21/11/2024 18:21

The holidays should be prorataed to the number of hours eg if the standard work week is 40 hours and you work 30 hours, you get 3/4 holiday allowance.

It may be the case of that's how it "should" be, but that's not what they presented to me when they put together my flexible working agreement, and what was in the agreement accepted by all parties 😬

OP posts:
Mrsttcno1 · 21/11/2024 19:44

MuddlingThrough1724 · 21/11/2024 19:26

It may be the case of that's how it "should" be, but that's not what they presented to me when they put together my flexible working agreement, and what was in the agreement accepted by all parties 😬

Edited

It will almost certainly state in guidance or contract that part time staff have holidays pro-rata.

Ultimately you can’t hold them to a mistaken number if it is clear what the intention was to be, meaning holidays pro-rata for part time staff.

Purplecatshopaholic · 21/11/2024 19:48

Mrsttcno1 · 21/11/2024 17:39

You can’t argue it if it is genuinely miscalculated and a mistake no, regardless of the fact it’s on the agreement people make mistakes. If they have realised their mistake and corrected it in this calculation then that’s not something you can really argue against. If you believe they have now calculated it incorrectly then you can argue that, calculate it yourself and show your workings and put that to them, but you can’t hold them to a mistake if it is genuinely incorrect.

This I’m afraid. Obvs you want to stick to what you see in black and white if it benefits you, but mistakes happen, and if they have made one and need to recalculate then that’s unfortunate but it happens, people being human. The annual leave is obvs pro-rata, you don’t get to keep FT holiday entitlement with PT hours (you are not seriously telling us you thought you would?), and I assume you do know that.

StormingNorman · 21/11/2024 19:50

MuddlingThrough1724 · 21/11/2024 19:26

It may be the case of that's how it "should" be, but that's not what they presented to me when they put together my flexible working agreement, and what was in the agreement accepted by all parties 😬

Edited

How do you want your holiday calculated?

Topee · 21/11/2024 19:51

So if the mistake had been in their favour you’d be okay with that not being rectified either?

You are essentially hoping to have a holiday entitlement in excess of everyone else’s, it would be more unreasonable if they didn’t correct it.

Saturdayssandwichsociety · 21/11/2024 20:19

MuddlingThrough1724 · 21/11/2024 19:26

It may be the case of that's how it "should" be, but that's not what they presented to me when they put together my flexible working agreement, and what was in the agreement accepted by all parties 😬

Edited

Tbh i dont think it needed to be spelled out to you OP, its generally understood that if you work 4 days a week you get 0.8 of the entitlement of leave days. If you are condensing your hours you will still technically be getting the same number of hours off.
You got lucky that they didn't notice their error til now, it will now be corrected and im afraid you don't have a leg to stand on unless you actively negotiated an enhanced leave entitlement with all parties actively aware you were being awarded proportionally more leave than colleagues.
You blates have known all along it was wrong and hoped nobody would notice

MuddlingThrough1724 · 21/11/2024 20:31

So to clarify, I had a previous flexible working agreement with exactly the same overall hours and holiday entitlement, and in the latest version, there was a fairly minor change to the core hours only. I always work at least my top up hours on the 5th day of the week that's what the business needs, I often work more, and oit of hours/at weekends/when on leave, but appreciate thats my own doing.

It's not straightforward any way you work it as it's a slightly unusual agreement, however, if I largely work 5 (shorter because of slightly reduced hours) days a week, it's not unreasonable for me to have accepted the stated entitlement as correct - when working 5 shorter days all year round, then 25 (shorter) days leave a year would be correct, whether you calculate it based on days or hours.

The simple solution is to calculate my leave on hours alone, with an agreement on how many hours equals a day given the number of hours in a working day varies in my case.

My issue is that HR haven't acknowledged an error on their part, though it may not even be an error depending on what the HR person who prepared the agreement had in mind regarding the flexible hours/days. They, and indeed the whole HR have left in the interim, so who knows. It seems a huge, yet basic oversight for a HR professional if it wasn't their intention. It isn't as if the paperwork was for a reduced leave allowance and someone forgot to update the system and so it let me book more leave than I was contractually entitled to, which I would have noticed and flagged, this is a case of them retrospectively trying to change the binding agreement (that HR put together).

Likewise, it's not as if they have apologised and made a proposal for a change with some explanation. They are seemingly trying to calculate based on the days of the agreed core hours alone, not taking into account that I don't only work those hours or only work on those days. They seem to be suggesting I work 4 days so lose 20% of the leave allowance, but actually, I (officially) work 85% of full time hours, with a commitment to fixed hours on 4 days, but I am always working in some capacity, but for a varying number of hours on the remaining weekday.

If they had come to me with a suggestion as to what they think a "normal" or "average" day is in hours, and calculated my leave based on hours alone so I end up with a reasonable compromise in terms of numbers of days, with a mention that it was an iversight on their part and an acknowledgement of the inconvenience to me since my plans will have to change, I'd be annoyed but amenable, however, they haven't. They seem to be implying I've done something wrong, which I haven't.

My paperwork is very clear, I am entitled to 25 days with my current working arrangements. The agreement covers a set of specific items, including leave, and for everything else the original contract applies, though that also makes no referenc to pro rata for those not full time, though I would of course assume this was the case, had my separate agreement not stated an alternative provision.

I think I'm mostly annoyed at how they are handling things - if a mistake was made, it was a HR mistake.

I guess if they insist on trying to vary the agreement, they'll not have considered that I'll then work to rule and they'll lose all cover on the 5th day and at weekends, and I won't check in on days off to try and cover since we are a small team. I'll also take sick days when I'm unwell instead of just powering through and working from home, and I won't juggle anything at home to accomodate anything above my contracted hours. Ironically, I'd probably have more time off! I've told HR I'll discuss when I'm back at my desk on my supposed "non-working day". Couldn't make it up. 🤣

OP posts:
SugarCookieMonster · 21/11/2024 20:47

Are you in a union? If so, my first step would be to contact them for advice. If not, contact ACAS. Both will be able to work out what the actual AL entitlement should be and advise you on how to approach HR. The union can pick it up and email on your behalf, ACAS normally have template emails you can use.

We’re right at the end of 2024 so trying to amend your entitlement for this year has a bigger impact than if they’d made the amendment at the start of the year. It’s not unreasonable for you to want some discussion around this amendment.

Also if I’ve learnt anything from working as a cog in the machine for 20 years, it’s that we’re all replaceable so don’t help out, check in on days off etc if you’re not getting the equivalent from them in return. We once had a temp who was so eager to stay and they encouraged him to apply internally for jobs. He worked late, came early, helped move furniture when we moved offices and the next day they said they didn’t need him anymore. He was stunned as they’d spent months telling him they wanted to keep him on. If someone shows you who they are, believe them!

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