I have basic hours 8-4 Mon to Fri. but due to amounts of work I have to do overtime on regular basis
for that overtime I am getting a double rate
At the end of a year I can see that my earnings are around 24 000 but if I go on holidays, the holiday pay is calculated on basic salary only which would be around 16 000 pa
Therefore I feel a bit of a financial squeeze when go on holidays
The latest relevant case on this matter is that of Bear Scotland where the Employment Appeal Tribunal decided that statutory holiday pay must be calculated in such a way whereby holiday pay is based on pay that is ‘normally’ received and must include:
Two types of cases were identified and these are:
In any event, the pay you are arguing you should receive only applies to the first 4 weeks’ of holiday pay as that is the minimum you are entitled to by law.
In order to try and resolve this, the employer should be contacted in writing, advised that this is being treated as unlawful deduction of wages and ask them to pay back the money within 7 days. Advise them that if they fail to pay the money that is owed, legal proceedings could follow.
If the employer does not return the money as requested, the following options are available:
Hopefully by warning the employer you are aware of your rights and are not going to hesitate taking further action they will be prompted to reconsider their position and work towards resolving this.
Hope this clarifies your position? If you could please let me know that would be great, thank you
That is great! I know about these cases and I told my employer, and he admitted that he knows about it too. But he insists that it does not apply to me. Which I am sure is wrong
Well the issue is that even if someone has to do something they may not necessarily do it, even if the law says otherwise
So that is when you will have to consider your next steps in trying to pursue it
Their argument was, that it happened in those two particular cases, but it's not a law.
I mean, overtime included in holiday pay calculation
Well it's not a law in a sense that it is not written in legislation but the UK legal system is made up of legislation and case law and both will have a legally binding effect. The issue is that this is still somewhat of a grey area as a lot of it is determined by case law which can be quite fact-specific so there is no guarantee that it would automatically apply to your situation but the principles are there and only a tribunal can determine if they apply to you or not, after careful examination of your circumstances. That is why this is the formal way of pursuing this if you cannot reach an agreement with the employer
but in theory, as You say, if the tribunal ruled in similar cases that employer must calculate the overtime in holiday pay, it shall be the same here.
because it has always been an issue for me to go on holidays as the money is much less than working
the argument that it 'should' be the same does not always mean it will be the same and there could be distinct differences in law which may not be immediately obvious but when determined in detail by a tribunal can make all the difference. That is why unless you take your case there and have a decision, you would not know if it falls within the same category, but in the meantime it is what you can use in your argument
ok, that is very good. I have quite detailed report from those cases and I am satisfied with Your answers. I will use this chat as an argument as well, if I may.
yes of course you are free to use that as you wish
Thank You! Good evening and happy Christmas!