Contract Law, thoughts please

Situation:

I have moved from a zero hours contract to a full time contract mid October.

On Zero Hours, I was paid holiday as it was accrued, therefore my holiday for the first two weeks of October was paid as I earned it.

On full time, I earn two days holiday for each full working month. This stumbles a little as in the first two quarters of the year, I earn just five days holiday per quarter.

My contract states a start date of October 15th. That is the full time contract. My ZH contract started in Mid November 2011.

There is confusion over both Christmas Holiday and the amount of Holiday I am owed.

I am fully flexible in my working hours but since September, I have been used solely on day shift working patterns with two nights out. My contract guarantees 40 hours per week.

I have to date in this calendar year, been unavailable for work for three days, (unpaid as on Zero Hours) and taken five days annual leave since moving to full time. One of said days AL was taken at the behest of the Traffic Manager as there was insufficient work available for all the full time drivers.

Relevant Contract Clauses.

4.1 - Entitlement to paid holidays is based on a current year basis. I.e., it is accrued and taken within the same year April 1st - March 31st

4.1.1 Entitlement during the first two years of employment will be in accordance with the table shown below.

5 Months = 8 days
6 Months = 10 days

4.1.4 - According to local requirements colleagues with holiday entitlement of 11 days or over during a year will have to hold three days to take at Christmas. Where this does not meet with operational requirements of the location, due to the customer service needs, these days will be taken at alternative times. Colleagues with no Christmas Holiday entitlement will be paid at your guaranteed hours at basic rate if they are available for work, but work is not available. You may be required to work during this period and if so you will be advised accordingly. Where three days have been held over, they can be taken earlier in the holiday year.

4.2.1 - Colleagues will be entitled to the eight statutory holidays as recognized by the company. At present these are as follows: (Only the relevant holidays are shown.)

New Years Day
Christmas Day
Boxing Day

Christmas Operating Times

Client site is closed 24th 25th 31st December and 1st January.

Very low working volumes are predicted for 27th and 28th December and drivers are being advised that they will either need to take annual leave or unpaid leave. Should there be less night drivers than necessary to operate the contract, the company may ask drivers from days to work either night trunking or night network delivery routes.

The rest of the story:

I had initially assumed that I did not have to retain holiday for use at Christmas as I will have less than 11 days actual holiday in the stated holiday year.

The TM originally agreed with my assessment but said that “I’m not paying you to sit at home so you will have to come in an wash trailers or paint the office or something.”

The company then revised their position after consulting with the site administrator. Their position is that while I will only accrue 8 days holiday in the year, the rest of my holiday was paid as it was earned, therefore I will have had more than the 11 days, paid rather than taken. I would therefore have to take a minimum of two days at Christmas due to the needs of the business, potentially four.

Needless to say I was disappointed as I would likely not have enough holiday to cover Christmas, let alone a date in January which I had intended to book off prior to this coming up.

The next day, I spoke again with the TM confirming that, and I quote, “for the purposes of Holiday, my employment is regarded as continuous.” The TM agreed and I queried at that point why I didn’t have nine days holiday. The extra day being for the half of October that I didn’t pocket the money as I accrued the holiday.

The TM then said that it was because holiday is accrued on a whole month basis, those two weeks don’t count.

The situation currently stands that, compared to a colleague who has worked exactly the same period of time as me, I am a day of holiday down. I questioned that, and the TMs response was that I’m quids in because he probably would have had to rest me for two days in October if I hadn’t been full time due to work volumes.

My understanding is that what possibly happened should and can not have any bearing on what actually did happen. That he probably wouldn’t have worked me cant be taken into account now, because he did find work for me.

The questions I have:

1:: Who is right on the Christmas Holiday? Me or the Company? Do I have to hold back three days for Christmas based on my Zero Hours employment or does my new contract start us from a clean sheet from the 15th October? (Is it important that my employee number has not changed?)

2:: Who is right about the correct amount of accrued holiday? Should I have 8 or 9 days? If eight, should the company pay now the holiday which would have been accrued in the last two weeks of October?

3:: Can the company force an employee to take holiday when they are unable to work the driver? This question obviously exempts the three days notified in the contract.

4:: If I am in fact owed a ninth day, can I refuse to use it at Christmas, or does that come under “Reasonable instructions from Managers/Supervisors” and refusal constitute misconduct?

5:: If the company opts instead to work me on site during the otherwise non-working days in dispute, are they able to have me working alone, on site, with only security in their gatehouse and no supervisor?

From mid oct 2011 to mid oct 2012 how many holl days had you got ?
How many of those did you take during the first two weeks of oct 2012 ?

ROG:
From mid oct 2011 to mid oct 2012 how many holl days had you got ?
How many of those did you take during the first two weeks of oct 2012 ?

On the rolling year to October 15th 2012, I didn’t get Holiday. I was paid a percentage of my Gross as Holiday pay each payday. For time off, I could just say that I was unavailable. I didn’t have to book holiday and the needs of the business didn’t apply.

In that time I took three days. One in May-ish and two in September.

I was not paid for this time.

I went full time on the 15/10/2012 On 23/10/2012 I took four days leave. On 06/11/2012, the TM requested that I take a day’s holiday. I was unsure at the time how much holiday I had so I did a deal to take the day off but get first refusal on Saturday overtime. I don’t get paid that until about midnight tonight, but having since had my holiday situation clairified, I now know that I will be paid that Tuesday as annual leave.

Does that mean that up to this time all paid leave has been taken?

ROG:
Does that mean that up to this time all paid leave has been taken?

No, it means that I have had the money instead and now that I am on a full time contract, I have lost the chance to take it.

nsmith1180:

ROG:
Does that mean that up to this time all paid leave has been taken?

No, it means that I have had the money instead and now that I am on a full time contract, I have lost the chance to take it.

From what you have said I deduce that from 15 oct you are starting at zero so in 10 weeks time you will have accumilated X amount of days holls

According to the law you have a minimum of 5.6 weeks per year which converts to 23 days (think my maths is ok)

10 weeks is about 20% of 52 weeks so pro rata for 23 days is at least 4 days

Is it just 4 days you need?

Hi there read this it mite help.

gov.uk/holiday-entitlement- … ntitlement

5.6 weeks= 28 days which can include public holls

Rolled-up holiday pay

Holiday pay should be paid for the time when annual leave is taken. An employer cannot include an amount for holiday pay in the hourly rate (known as ‘rolled-up holiday pay’). If a current contract still includes rolled-up pay, it needs to be re-negotiated.

I am required, if clause 4.1.4 applies in this case, to save three days for use over Christmas. I have those three days left but also have planned dates, (not yet requested) in January.

The dispute is over if 4.1.4 applies. They say it does because of my Zero Hours service. I say it doesn’t because my service is only regarded as continuous from 15th October, therefore time spent on Zero Hours doesn’t apply to the terms in my new, 40hrs per week contract.

The side disagreement, which has no bearing on the Christmas period other than to perhaps give me leave to be a bit more flexible about the whole thing, relates to the ninth day of leave. The company says that holiday is accrued based on full calendar months service but they opted to start me mid month as a full time employee. They also decided to start me a week before pre-booked leave, which was due to be taken UNPAID.

To their credit, they have paid me for said leave.

What they should have done is start my full time contract from the first of November. Then this whole disagreement would have been avoided because I would have taken my four days in October unpaid, the extra day in November at the bosses behest would have been paid, and I would have seven days leave to cover Christmas and January.

If they say that my Zero Hours service applies, then surely my move to full time is an amendment of the existing Zero Hours contract, not a whole new employment.

Conversely, if the ruling factor here is the fact that my employment started mid month, giving me only eight days holiday in the holiday year, then under the terms of their contract, I don’t have to take any holiday over Christmas because in this holiday year, under this contract, I will not accrue sufficient holiday to satisfy the clause.

Delboy, the current contract doesn’t include rolled up pay. That is what is causing the problem! I was on rolled up because I had no guaranteed hours. As soon as I had the hours, they put me on to the normal arrangement.

We had two save 3 days for xmass last year theres nothing you can do about that bit but remeber if there ask you to work there have to give those days you work back,to be taken as required.

One thing I know if you had holiday left at the end of march you could be pay for it, but not now you lose it and also 4 weeks of your holiday per year as to be counted as 48 hours per weeks holiday for RTD(working time).