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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46743
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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If I work overtime on quite regular basis, shall it be taken

Resolved Question:

If I work overtime on quite regular basis, shall it be taken in account when calculating holiday pay?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Is the overtime you do guaranteed by the employer, say would they still have to pay you if they cannot allow you to do it?
Customer:

I have basic hours 8-4 Mon to Fri. but due to amounts of work I have to do overtime on regular basis

Customer:

for that overtime I am getting a double rate

Customer:

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

Customer:

Therefore I feel a bit of a financial squeeze when go on holidays

Ben Jones :

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:



  • Payments linked intrinsically to the performance of the tasks which the worker is required to carry out under their contract of employment.

  • Payments which relate to the worker's professional and personal status.


Two types of cases were identified and these are:



  • Cases where there is a settled pattern of work. And where payment has to be made for a sufficient period of time to justify the label "normal".

  • Cases where there is no settled pattern of work. In such cases, average remuneration should be calculated over an appropriate reference period, usually taken as 12 weeks.


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:



  1. Employment Tribunal - the time limit to claim is only 3 months from the date the deductions were made. To make the claim, form ET1 needs to be completed and submitted - you can find it here: https://www.employmenttribunals.service.gov.uk/employment-tribunals

  2. County Court – this is an alternative way to claim and the advantage is that the time limit is a much longer 6 years and is usually used if you are out of time to claim in the Tribunal. The claim can be made online by going to: www.moneyclaim.gov.uk.


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

Customer:

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

Ben Jones :

Well the issue is that even if someone has to do something they may not necessarily do it, even if the law says otherwise

Ben Jones :

So that is when you will have to consider your next steps in trying to pursue it

Customer:

Their argument was, that it happened in those two particular cases, but it's not a law.

Customer:

I mean, overtime included in holiday pay calculation

Ben Jones :

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

Customer:

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.

Customer:

because it has always been an issue for me to go on holidays as the money is much less than working

Ben Jones :

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

Customer:

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.

Ben Jones :

yes of course you are free to use that as you wish

Customer:

Thank You! Good evening and happy Christmas!

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46743
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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