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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Holiday entitlement - term time only We are a small charity

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Holiday entitlement - term time only
We are a small charity parent-led committee running a playgroup and employ two staff. We have recently drawn up new contracts and one of the staff disagrees with the holiday entitlement we've offered. They work 25 hrs a week 38 weeks a year. We have calculated their holiday using the statutory 20 days with any term time bank holidays added on. We were under the impression that it wasn't a legal requirement to pay the 8 days bank holiday hence why the calculation is based on 20 days and not 28 days (5.6 weeks).
Our calculation: 4weeks/(52-4) = 0.083
25hrs x 38 wks x 0.083 = 78.85 Hours or 16 days + bank holidays in term time
The staff member has been advised by others that the calculation should be:
5.6weeks/(52-5.6) = 0.1206
25hrs x 38 weeks x 0.1206 = 114.57 hours or 23 days inc all bank holidays
Is it possible for you to pls advise us that our first calculation is legal based on 20 not 28 days?
I spoke to ACAS but they don't appear to be trained for working out term time workers' holiday entitlement.
Thank you *****
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How many days per week does she actually work?
Customer: replied 2 years ago.
She works 5 days 5 hours a day
Expert:  Ben Jones replied 2 years ago.
ok thanks I will look up the relevant rules and get back to you today
Customer: replied 2 years ago.
Thank you. I look forward to hearing from you later.
Expert:  Ben Jones replied 2 years ago.
Thanks for your patience. Your interpretation of the applicable law is slightly inaccurate unfortunately. Whilst it is not a legal requirement to pay someone holidays for bank holidays, you still have to give that person their minimum statutory holiday entitlement, which is actually 28 days. What happens is that the majority of employers choose to include the bank holidays in employees’ holiday allowance, even though they do not have to. However, if an employer did not want to include the bank holidays in that allowance, they would still have to give the employees the 28 days required by law. So your belief is that that the minimum legal entitlement is 20 days but that is incorrect – it is actually 28 days, which could also include bank holidays. If bank holidays are not included as part of the calculation then the entitlement still remains at 28 days regardless.
Unison has commented on the calculation of term time holidays as follows: “A common mistake is to divide the year (52.14 weeks) by the number of school weeks (38/39) and to use that fraction to pro-rata annual salary and holidays. But this is not comparing like with like as the 52.14 weeks includes all holidays: annual leave, bank and statutory holidays. Weeks worked must be compared to weeks worked, so the full year comparison figure should have all holidays removed.”
The main issue is that there is no specified way of calculating the holiday allowance for term time workers. The most common way is using the following calculation:
Total number of possible working days in a year = 365 – 104 (weekends) – 8 (bank holidays) – 20 (remaining holidays) = 233
Term time workers would work a total of 38 x 5 = 190 days a year.
If a worker was working full time throughout the year they would get 28 days. Therefore a term-time worker would get a proportion of that based on how many weeks they work. So 190 / 233 = 0.815. You then use this to calculate a pro rata allowance, so 0.815 x 28 = 22.8 days’ holiday.
You can also use the Government’s holiday calculator (using the casual or irregular hours option):
https://www.gov.uk/calculate-your-holiday-entitlement
That asks for the total number of hours worked in the current holiday year, which is 38 x 25 = 950. This gives a total of 114.4 hours of holiday to be taken, which equates to 22.8 days. So you would have to give that employee around 23 days’ holiday.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
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