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Holiday Entitlement Pro Rata?

Discussion in 'Employment & HR' started by cts1975, Jan 26, 2018.

  1. cts1975

    cts1975 UKBF Regular Free Member

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    We are about to take on PAYE driver who will drive for 25 hrs per week. 5 hours per day Mon-Friday.
    He works 38 weeks per year, during school term time only.
    We are closed on Bank Holidays so we subtract these from his 28 day annual entitlement?
    Will the remaining 20 days per year still stand or will this figure be adjusted 'pro rata' as he only works for 38 weeks per year?
    Thanks
     
    Posted: Jan 26, 2018 By: cts1975 Member since: Apr 29, 2012
    #1
  2. Newchodge

    Newchodge UKBF Big Shot Free Member

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    You don't do any of that.

    First ignore bank holidays. Employment law does not recognise them. IGNORE THEM.

    Your employee is entitled, by law, to 5.6 weeks paid holiday per year. In your situation, calculating what a week is, is problematic. So don't. Use the simple formula that your employee is entitled to 12.07% of their earnings as paid holiday.

    Every time you pay them for work done calculate 12.07% and that is the amount of paid holiday they are entitled to for that work period. I assume you have a rule that they cannot take holiday during term time?

    When he is on unpaid leave, because it is holiday time you pay him the 12.07% that you have already calculated.

    Or ask a payroll provder to do it for you.
     
    Posted: Jan 26, 2018 By: Newchodge Member since: Nov 8, 2012
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  3. Newchodge

    Newchodge UKBF Big Shot Free Member

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    Only if you pay him for them.
     
    Posted: Jan 26, 2018 By: Newchodge Member since: Nov 8, 2012
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  4. cts1975

    cts1975 UKBF Regular Free Member

    142 26
    I really wanted to be able to understand it in days/weeks etc if possible.
    A week would be Monday to Friday for 38 weeks out of 52.
     
    Posted: Jan 29, 2018 By: cts1975 Member since: Apr 29, 2012
    #4
  5. Newchodge

    Newchodge UKBF Big Shot Free Member

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    The right to holidays is to 5.6 weeks.

    Someone employed full time works 46.4 weeks in order to get that holiday (46.4 + 5.6 = 52).

    If someone works 38 weeks they work 82% of the weeks that a full timer works So they get 4.6 weeks as paid holiday.

    If there is a bank holiday during their working time, and they get paid for that bank holiday, that day is subtracted from their holiday allowance, as they have taken a paid holiday. If the bank holidays fall during the weeks when he is not employed, ignore them.

    EDIT: If he works 38 weeks x 5 hours, he works 190 hours. 12.07% of 190 is 22.93, rounded up to 23 hours holiday.

    4,6 weeks holiday @ 5 hours per week is 23 hours.
     
    Posted: Jan 29, 2018 By: Newchodge Member since: Nov 8, 2012
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  6. cts1975

    cts1975 UKBF Regular Free Member

    142 26
    Fantastic Cyndy. That's all understood. Thanks for explaining.
     
    Posted: Jan 29, 2018 By: cts1975 Member since: Apr 29, 2012
    #6
  7. Employment Law Clinic

    Employment Law Clinic UKBF Big Shot Full Member - Verified Business

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    I may be missing something, but I don’t understand all of the above.


    Cyndy, you mention

    but how could that possibly work? To have a rule that an employee couldn’t take holiday during their working time, instead that this needs to be taken when an employee is not contracted to work is no different to saying if you work Mon-Fri, you can only take leave on weekends. The 14 weeks a year that are not worked are not “holiday time” that could be paid, but non-working time.


    Karl Limpert
     
    Posted: Jan 30, 2018 By: Employment Law Clinic Member since: Aug 10, 2009
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  8. Newchodge

    Newchodge UKBF Big Shot Free Member

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    All school staff who are non-teachers have term-time only contracts. They are not permitted to take time off during term time. So, effectively their contracts are extended by the amount of holiday to which they are entitled and they take their paid holiday during that extended time. I was trying to avoid complicating matters by explaining all of this in detail.
     
    Posted: Jan 30, 2018 By: Newchodge Member since: Nov 8, 2012
    #8
  9. Employment Law Clinic

    Employment Law Clinic UKBF Big Shot Full Member - Verified Business

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    I’m familiar with such practices, and I’m sure I’ve encountered clients seeking something along these lines.


    But in practice that is no different to saying to someone that works 9-5, Mon-Fri, that they are also employed to work every other Saturday, and coincidentally also have to take their leave every other Saturday: there would be no annual leave during the working year at all, the employer only compensating for the leave, paying the extra 12.07%.

    No doubt such terms could be written to comply with the letter of the Regulations, but it’s such a blatant breach of the spirit of the Working Time Directive, I don’t think that would ever be upheld in a tribunal; certainly not by the ECJ, if a case was taken that far.


    Karl Limpert
     
    Posted: Jan 30, 2018 By: Employment Law Clinic Member since: Aug 10, 2009
    #9
  10. Newchodge

    Newchodge UKBF Big Shot Free Member

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    An employer is entitled to specify when holidays may and may not be taken. In this case an employee can take holiday during 6 periods of time - any school holiday or half term. I am fairly sure it also applies to teaching staff, although in a different way - they are paid 52 weeks per year but may not take holidays during term time.

    Given how widespread the practice is, I wold be surprised if it has been unlawfula ll these years, but I am prepared to learn!

    You can look at it another way, an employee is entitled to 14 weeks holiday of which a proprtion is paid. In your Saturday example it would be a breach in thast staff could only ever take a maimum of 1 day off at a time, while the WTD envisages a week off.
     
    Posted: Jan 30, 2018 By: Newchodge Member since: Nov 8, 2012
    #10
  11. Employment Law Clinic

    Employment Law Clinic UKBF Big Shot Full Member - Verified Business

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    It's an interesting issue, Cyndy, one I’m not convinced about by the fact the practice is widespread – pay disparity is widespread, but that’s not legal. (I think a BBC Audit by an accountancy firm found it hadn’t been discrimination per se, but of the few cases that have been taken to tribunal, they have been.)


    What is the purpose of leave if you can’t take it during your working time? Why couldn’t every employee be given an extra half day a week, and paid for this?


    I don’t know where the WTD envisages a week off at a time; I can only recall that the leave can be taken in smaller periods than the four weeks – which one day every two weeks would suffice.



    Karl Limpert
     
    Posted: Jan 30, 2018 By: Employment Law Clinic Member since: Aug 10, 2009
    #11
  12. Newchodge

    Newchodge UKBF Big Shot Free Member

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    I was thinking of the fact that the WTD specifies leave in weeks, not days.
     
    Posted: Jan 30, 2018 By: Newchodge Member since: Nov 8, 2012
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  13. Newchodge

    Newchodge UKBF Big Shot Free Member

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    With apologies to the OP for hi-jacking the topic.

    Something I have never been sure about:

    Suppose a part time employee works 7 hours per day, Monday Tuesday and Wednesday. They book a week's holiday. They are then offered and accept overtime in the same week of 7 hours per day on Thursday, Friday and Saturday. Does that breach the Directive?

    If that is considered a breach, as they haven't had a 'week' off, what is the difference if they are offered the overtime for the week prior to their holiday?
     
    Posted: Jan 31, 2018 By: Newchodge Member since: Nov 8, 2012
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  14. Awinner2

    Awinner2 UKBF Regular Free Member

    242 40
    Disregarding how to calculate holiday entitlement, many school support staff are on same terms as teachers. Their annual pay is averaged across 12 months although they are only contracted to term time working. This ensures regular pay for the whole year and spreads out cash flow for the employer.
     
    Posted: Jan 31, 2018 By: Awinner2 Member since: Aug 4, 2017
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  15. DontAsk

    DontAsk UKBF Enthusiast Free Member

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    This ^^^.
     
    Posted: Jan 31, 2018 By: DontAsk Member since: Jan 7, 2015
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  16. Newchodge

    Newchodge UKBF Big Shot Free Member

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    Absolutely true, but not really relevant, is it?
     
    Posted: Jan 31, 2018 By: Newchodge Member since: Nov 8, 2012
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  17. Awinner2

    Awinner2 UKBF Regular Free Member

    242 40
    That's what I said at the start of my post. You mentioned term time only contracts for non teaching staff in one of your valued posts above! I was updating how that is reflected in payment procedures.
     
    Posted: Feb 1, 2018 By: Awinner2 Member since: Aug 4, 2017
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  18. Newchodge

    Newchodge UKBF Big Shot Free Member

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    Actually, it's not strictly true. Teachers are on 52 week contracts. Support staff are on term-time only contracts which include a clause that they will be paid in 12 monthly instalments. That, of itself, creates major problems for many staff, who are unaware of their real terms and conditions. They are still on term-time only contracts. Except in Durham, of course, where the change to term-time only has resulted in over a year of intermittent industrial action.
     
    Posted: Feb 1, 2018 By: Newchodge Member since: Nov 8, 2012
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  19. Awinner2

    Awinner2 UKBF Regular Free Member

    242 40
    I bow to your superior knowledge ;)
     
    Posted: Feb 1, 2018 By: Awinner2 Member since: Aug 4, 2017
    #19
  20. Newchodge

    Newchodge UKBF Big Shot Free Member

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    I did spend 16 years as a trade union official dealing with local authorities. The trials and tribulations of teaching assistants and dinner ladies will live with me forever!
     
    Posted: Feb 1, 2018 By: Newchodge Member since: Nov 8, 2012
    #20