Help - PLEASE
My wife works in care and has a job where she works part time any of seven days, clocking up 87 hours per month. This equates to 20 hours per week (agreed by the employer).
Her days of work are not the same each week and she works a mixture of 8 and 5 hour shifts.
The company's holiday is worked on a five day week where full timers are entitled to 4.6 weeks per year (I know this has increased to 4.8) with Statutory and Bank holidays added to the entitlement. Full timers work an agreed 40 hour week.
My wife is told she is due 92 hours per year (4.6 weeks x 20 (hours per week).
My question is:-
Should she be able to book 23 days holiday per year (ie 23 days being achieved by 92 (total hours) / 4 (hours worked per day) =23 days?
I ask this as she is told that she has to put in her request for holiday BEFORE the next month's rotas are drawn up and then amazingly every day she books she is working and so as the company have said that if she books off a 5 hour shift she has 5 hours deducted from her holiday hours and if she books an 8 hour shift 8 hours are deducted. As a result instead of having a 4 hour deduction for every day booked it can sometimes be 8 hours or 5 hours with the effect that she can never achieve 23 days. As a result of the way its been done in the last year she only was able to book 18.
Is this legal as the hours have been used but with many fewer days than the legal minimum.
What you ask is not a straightforward question (surprise surprise!!). Before I have a go at it I should point out that your wife's employer's maths is wrong - 87 hours per month is 1044 hours per year (87 x 12). 20 hours per week is 1040 hours per year (20 x 52) - she has lost 4 hours in the calculation they are using. I am also unsure how you get to 20 hours per week working 5 and 8 hour shifts.
Now to the nitty gritty! Regulation 13 of the Working Time Regulations gives each worker the right to 4.8 weeks paid leave. In cases where the number of hours worked per week varies then this should be aggregated to give a weekly figure. Your wife and her employer have agreed on 20 hours per week and so the correct calculation is indeed 4.8 x 20 hours. If the public holidays are given on top of any entitlement then the employer is free to carry on using 4.6 as the multiplier (since 4.6 x 5 plus the 8 public holidays comes to more than 24 days for a full time equivalent).
However, as your wife has discovered there is an anomoloy in this. The figure used to calculate statutory holiday is an aggregate one and does not actually reflect the reality of a working week for her if she takes odd days off. This is not uncommon and is particularly prevalent in care and hospitality where the majority of staff work irregular weekly hours.
The way around this situation, which would give your wife the number of days she seeks, is to only receive 4 hours pay per day off on annual leave. The effect of this would be to reduce her pay (since you have said that she works mainly 5 and 8 hour shifts) and may not work to your advantage as a result. There is no reason that she can't ask her employer to implement this, but they may resist if it means having to recalibrate their pay system.
There is something that you have described about the whole issue that seems unfair, and that is the requirement to book leave before the rota is published. This is a bit chicken and egg - your wife may not have to book leave if she is not rota'd for a particular day, but she won't know that until the rota is published (catch-22). The bad news is that this is another of those legal but unethical situations. If the employer has made this a condition of employment then there is little she can do - a relevant agreement relating to holidays will supersede the statutory provision of giving twice as much notice of leave as the amount of leave required. Even if it was not a condition of employment an employer can postpone holiday requests for operational reasons if it so wishes - the only requirement is that an employee is afforded the statutory period of leave off work in any given year.
Hope this helps.
semper ad meliora
Thanks for the info!
If my wife books 1 week off then she's deducted 20 hours meaning that she will worl 67 hours during the rest of the month to make up the hours.
Thus if she were to book off 3 days she would book off 12 hours meaning that she would work 75 hours during the rest of the month so I'd assumed that her employer wouldn't suffer by this and she would not need to take a pay cut, whilst the holiday entitlement would remain correct. Is this correct?
Secondly is it ok that although she has the requisite number of hours booked against her holiday entitlement of 92 hours, she hasn't had 23 days off (17 only this year). Is this ok as there seems to be a legal minimum of 23. I say this as she is being allowed only 4 bank holidays and this means that she still only gets 21 days (17 days holiday plus 4 bank holidays). her full time colleagues are given 8 bank holidays, can this also be correct? Incidentally in this connection her contracrt says," "All statutory public holidays and pro rata to twenty working days annual leave in each leave year" I can see that she would get 25 days if she had the full entitlement to bank holidays, but as she's limited to 4 is the law satisfied? This seems to be discrimination against a part timer?
Sorry to labour this one.
ianwe: Thus if she were to book off 3 days she would book off 12 hours meaning that she would work 75 hours during the rest of the month so I'd assumed that her employer wouldn't suffer by this and she would not need to take a pay cut, whilst the holiday entitlement would remain correct. Is this correct?
That is the general idea if she doesn't want to lose pay in the month. This would give her the number of days that you were asking about (but it will mean working extra hours to make up the time).
Your second issue about the number of days arises from a confusion about holidays. The rules do not state that she is entitled to any set number of days paid leave. Her entitlement is to 4.8 weeks off. If her number of days changes because it is the the number of hours that is important, not the days she works, then the calculation will be based on hours. For example, if she always worked 4 days then her holiday entitlement would be 4.8 x 4. However, you have indicated that she works varied days and is commited to 20 hours, so the correct calculatin for her is 4.8 x 20. from what you have said thus far her employer appears to be satisfying the WTR in respect of the amount of leave. The anomoly between hours and days arises for the reasons stated in my previous reply.
Your question on bank holidays is an interesting one. To clear up a misconception, bank holidays are holidays for banks as set out in the Banking and Financial Dealings Act 1971 (I think). For the rest of the country they are a normal working day, unless an employer chooses to close that day. Bank holidays can be included in the statutory amount of leave or they can be additional - that choice is entirely up to employers and the custom and practice they have set over the years.
The question of bank holidays and part time working has always been contentious. When the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2004 came into effect commentators hailed the fact that this meant if an employer paid their full time employees for a bank holiday then part time staff should be treated in the same way (on a pro rata basis). However, the case of McMenemy v Capita Business Services spoiled the party a little. In that case full time workers were not traditional Monday to Friday workers, they could work any 5 days from 7. As a result the employer did not pay anyone holiday pay for a bank holiday if they did not normally work that day. This meant that refusal to pay a part timer was not discrimination.
So where does that ramble take us...well, if your wife's full time colleagues are paid for 8 bank holidays regardless of their working week then not to pay your wife on a pro rata basis would be discriminatory. If they do not pay full timers for a bank holiday unless it falls on a normal working day for them then they can apply the same rule to your wife. You say in the post that your wife gets 4 days for bank holidays which would appear to be fine (she works half of a full time week and so gets half of the full time entitlement).
What you do not make clear is whether or not this entitlement is on top of the statutory calculation. In your original post you gave a figure for hours of leave that was based solely on the requirment to work 20 hours per week. If bank holidays are not in addition to this then the multiplier should definitely be 4.8 and not 4.6.
The questions and responses to this are getting a bit 'war and peace' like - if you want to contact me directly to simplify this process please feel free.
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