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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45327
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Up until the beginning of 2014 I worked full time and received

Resolved Question:

Up until the beginning of 2014 I worked full time and received 28 days leave entitlement. In 2014 for the same employer I started working part time (3 days per week) and was given 17 days leave entitlement. No problem with that; however during 2014 I also worked 80 days of paid overtime due to volume of work that the company had to process, in other words for 40 weeks of the year I effectively worked full time. Can you advise if I am entitled to additional statutory leave for the overtime worked? Compared to when I was employed full time there was no difference to the job I was doing, however I am being treated differently and I believe unlawfully.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Do you have a specific question about this ?

Customer:

The specifics refer to me

Customer:

Hello Ben are you there?

Customer:

Ben I am told you have answered my query but i can't find it, anywhere

Customer:

I'm fed up waiting for you to respond, perhaps you will leave me a message I will check back tommorow

Ben Jones :

Thank you. I cannot open this post properly at the moment. I will get to a fixed connection as soon as possible. There is no need for you to sit on line. You will get a message when I respond. Sorry for the inconvenience.

Ben Jones :

Hi, sorry for the delay, I experienced some technical issues last night and could not manage to respond, all seems to be fixed now so will try again.

If an employee works overtime, they are not automatically entitled to holiday pay for this, although there are circumstances when they can claim that they should have continued to accrue holidays.

If they are entitled to overtime pay when working for "more than a fixed number of hours in a week or other period", the worker is treated as having normal working hours equivalent to the fixed number (or, if greater, the minimum number of hours that the employee is contracted to work). It is generally considered that overtime is only included in normal working hours where it is both guaranteed and compulsory (so that even if the employee is not called on to work it, the employer is liable to pay them for it). Voluntary overtime would not be included.

So if you were guaranteed those hours and it was not an optional overtime arrangement, you can include it in the calculation of your holiday allowance (up to a maximum of 4 weeks a year, calculated pro rata) and also have it included in the calculation of your holiday pay.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

Customer:

Hi Ben, thank you for taking the time to answer my query, I need to consider what you have said as I am not entirely clear I understand when overtime is considered guaranteed or voluntary, can you offer a definition. The irony is that I am currently working so much overtime that i cannot devote enough time to considering your answer, you will see that I typing this at 05am. Anyway from my laymans viewpoint I could quite easily be in a position where I work the equivalent of full time ie part time and the rest overtime but not receive the same leave entitlement as my fulltime colleague

Customer:

Sorry, that got posted when i hadn't finished..

Customer:

Surely in that situation I would be being treated differently to my full time colleague which ( I understand) is a condition not permitted by law i.e. discrimination. You should know that I am a monthly paid employee and my overtime is calculated on the basis of a full day or half a full day i.e. it is not individual hours, does that make a difference? What would be the condition where my working pattern was classed a flexible as I believe this is treated differently and holiday entitlement is computed as percentage of time worked, can my situation be considered as falling into that category. Thanks

Customer:

Can you tell me how to print this correspondence trail?

Customer:

Ok I have considered the guaranteed/voluntary category further

Customer:

My contract stipulates the number of hours of my working week, I don't have to work overtime so I guess it would be classed as voluntary. However my job is such that if I did not work overtime then I would not be able to execute my duties, which is a bit of a catch 22. My job requires that I compile and submit tenders/estimates to bid for work in the construction industry. Invariably the tenders are large and require considerable time and effort to compile, they also have to be submitted by a deadline. It is not possible to undertake a large tender on a part time basis as there would be insufficient time to allow an effective and competitive bid. I used to work full time at this job but I am now 60 and wanted to cut back..ha ha..so my company agreed to my part time status.

Customer:

Ok please get back to me when you have time, I may not reply immediately for the reasons given above

Ben Jones :

Hi, to be honest the whole area of holiday pay and hours worked is in a somewhat of a mess at present. There have been numerous cases in recent years that have had some conflicting decisions and there is nothing in black and white to say what exactly should be considered when it comes to overtime.

Cases that will help you are Fulton v Bear Scotland Ltd where an employment judge decided that a worker who worked regular overtime as a matter of course was entitled to have that overtime reflected in his holiday pay.

In Wood v Hertel (UK) Ltd an employment tribunal held that holiday pay should include overtime (which in this case was compulsory but not guaranteed overtime).

Alost al cases have recommended that the law should change and be clearer rather than this being decided through cases but as yet that has not happened. Until then you will have to rely on the various arguments I have discussed and whilst you certainly have a case to potentially bring forward the outcome will never be guaranteed as it will come down to individual circumstances and the judge’s view on the day.

Does this clarify things a bit more for you?

Customer:

Hi Ben

Customer:

Thanks for the additional input

Customer:

I really have no intention of raising a tribunal case against my company as that are actually good to work for

Customer:

If the various cases you mention bring about a change in the way leave pay is administered then I'm sure my company will implement the changes, in the mean time I can always choose not to work the overtime and see how they react or accept the status quo. It is however good to have a better knowledge of how the statute is interpreted inlaw.

Customer:

Ok I'll leave it at that, thanks for your help

Customer:

Regards

Customer:

Charles

Ben Jones :

you are welcome, all the best

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45327
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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