Holiday Pay, Furlough Rights & Contracts.

[Dan Buc]

Hi Folks, new to the forum and hope anyone more educated on employment law can assist/advise here.

I work at a small family run engineering firm in scotland and have done for 7 years now. When I first started I was never given an employment contract be it written or verbal. I was told that the standard (minimum hours) was 40hrs a week, but that I would more than likely be working 58 hours nearly every week, as I have done for 7 years. I have worked 58 hours or more, roughly 45 weeks of each year for 7 years and I'm given little room to say no to these hours, which I don't mind. These are accepted among the fellow workforce as our standard hours.

So, to get to the point. HOLIDAY ENTITLEMENT/PAY
I've always wondered after discussing with workmates from previous employment how much pay and/or entitlement I'm entitled to, as these guys say I am well underpayed/compensated for leave entitlement. I receive 28 days entitlement per year payed at 8 hours per day, this obviously amounts to a 40 hour weeks pay, although I almost certainly work 58 hours for majority of the year. I have been led to believe that I am either underpayed or dont receive enough holidays. The extra 18 hours is overtime, but this extra hours is required and worked nearly every week of the year for as long as I have been there. It our 'real' standard hours.

HOLIDAY NOTICE PERIOD DURING COVID 19 FURLOUGH
Although our work involves repair and maintenance of essential industries such as waste water and food factories, our bosses crumbled for the first few weeks and furlough myself and 2 fellow workmates for 6 weeks. We were told the day after the PM announced the lockdown that we were going to be furloughed for 3 possibly 6 weeks from that date. 6 weeks pass and we went back to work, (our usual hours and more might I add). After querying why my furlough pay was based on 40 hour weeks rather than an average of my hours (58hr) over a period of time, she explained that the furlough had already been applied for and claimed for us. 2 weeks later, my boss informed us that 2 weeks of our leave entitlement had been used at some point during lockdown. No notice, in fact we weren't aware of this at all ( because it had just been decided there). Should there have been notice, and isn't fraudulent to have revoked our holidays, only payed us 80%(furlough wage) for them and to have claimed furlough on top of that?

Thanks

 

[Rebecca_J_T]

Hi Dan,

Just to get it out of the way, I would suggest asking your employer for a written employment contract. You’re entitled to this. You should also have been asked to sign a European Working Time Directive waiver form given the number of hours you’re working - your employer could provide this to you along with your contract.

In terms of holiday, it’s become fairly well established over recent years that holiday pay should be based on your average hours over the previous 52 weeks if you’re not working regular hours. So if the records show that, on average, you’re being paid to work 58 hours a week, if you take a week’s leave, your holiday pay should be for 58 hours.

Leave arrangements during furlough have been complicated and many employers have been confused. Although your employer would have been entitled to request that you take leave during your furlough period, you’re right - you should have had notice of that (twice as long as you were being asked to take). That said, I don’t think it would be unreasonable of an employer to ask for some flexibility in this respect where an employee is furloughed, but you are entitled to notice.

Holiday should be paid at your normal full (pre-furlough) rate, unless you’ve previously agreed to a permanent decrease in salary. And this should be calculated at an average of your previous 52-weeks of paid work, based on records of that work.

I hope this helps.

Becky