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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46183
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have worked employers since April 2010 when they took

Resolved Question:

I have worked for my employers since April 2010 when they took over ownership of the small business I already worked in. I had an agreement with them from the begining that I would increase my previous hours to work full time to be in charge of the ironing / laundry shop. In the begining I worked a basic 37 hour week as my compulsury hours before overtime. A year and a half ago this went up to 41 hours as I no longer have any help and can only shut the shop early to have an afternoon off once a week. I used to have 2 afternoons off when I had help. They have only ever paid me 20 hours a week or 4 hours a day holiday pay though because they made me sign a contract that said my hours would be no less than 20 a week and a maximum of 40. When I queried this I was told not to worry they knew I was full time but they never gave a contract of more than 20 hours to anyone. Also I get paid whatever the minimum wage at the time is plus £1.00 an hour as 'supervisory bonus', but on holiday I only get 4 hours a day at minimum wage. I don't think this is right, please advise, Thankyou.
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. What specific queries do you have about this situation so I can direct my advice better?

Customer:

I wondered if it is legal for them to only pay me 4 hours minimum wage a day for holiday as I have never only worked a 4 hour day for them, I have to open the shop by 8.30 am and close not before 5.30 pm, except on Thurs when I close at 1.30. Also should I not get the same hourly rate on holiday or can they legally get away with that by my payslip showing minimum wage plus an extra pound an hour as 'surperviser bonus' ?

Ben Jones :

what is your normal hourly pay?

Customer:

Minimum wage plus one pound, so that is £7.50 an hour at the moment, but my payslip is made up of all the hours worked, average 43 - 45 a week at minimum wage, plus an extra pound per hour as superviser bonus. They say they don't pay that when I'm on holiday as I don't supervise when I'm not there.

Ben Jones :

Under the Working Time Regulations 1998, workers are entitled to be paid during statutory annual leave at a rate of a week's pay for each week of leave. The way in which the payment is calculated depends on a number of factors, such as whether the worker has "normal working hours" or "no normal working hours".

Generally, a worker who has "normal working hours" will have their week's pay calculated with reference to those hours. This usually means basic salary, disregarding any overtime hours (except guaranteed, compulsory overtime) and without any additional bonuses, commission payments, overtime premiums or allowances.

So you can expect that your holiday pay should be calculated on the full time hours and that when you take a day’s holiday you should be paid for 8 hours because that is what you always work, regardless of what your contract says. However, you cannot add the supervisor bonus to the holiday pay as that is not the basic salary you usually receive, it is an additional payment on top of that.

Customer:

So to clarify, If the minimum hours I have to work to keep the shop open are 9 hours a day on Mon, Tues, Wed and Fri and 5 hours on Thurs then that is what I should be paid on holiday, not 4 hours because of the contract they gave me ?

Ben Jones :

it is not jst what is in your contract - otherwise any employer could try and issue a contract for minimum hours and require its employees to work additional hours on a permanent basis and try to pay lower holiday pay but what matters is whether normally you work the longer hours and in your case that is clearly the case

Customer:

I thought so, and this has gone on for nearly 5 years now, I have approached them about it and practically got laughed at. I'm scared to say too much and put my job in danger, what can I do, also will they owe me back pay for the previou years? I have kept every payslip as proof.

Ben Jones :

as long as you were never paid the correct amount you can claim the whole back payments as one 'series' of underpayments. You have the right to raise this, they cannot legally dismiss you for doing so - if they do it will be an unfair dismissal which you can challenge in the employment tribunal if necessary

Customer:

is there a time limit to claiming the back pay ? and what if they just start to pay the right amount in future, would that mean that I couldn't try to claim back pay for the previous years?

Ben Jones :

it is 3 months from the last underpayment but if this is an ongoing issue then it will continue indefinitely. But as soon as they pay you the correct amount the time starts to run, so if they do you still have 3 months to claim for the previous pay owed

Customer:

I always thought I was right, thankyou for confirming it for me.

Ben Jones :

you are welcome, hope you get it resolved

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46183
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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