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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45319
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My daughter has been working same firm since

Customer Question

Hello, my daughter has been working for the same firm since 1 Dec 2014 while completing her uni studies. Between 1 Dec and 30 June, she was on an hourly contract where she would not know beforehand the days/hours she would be asked to work but was called a day before and accepted the hours or refused them. She mainly accepted them. During those days, she worked between 10 and 12 hours per day and was paid above the minimum wage. She took no holiday leave during that time.
In June, she was offered by the same employer a full time permanent contract that she accepted (but the signed copy was never returned to the employer). She took 6 days leave in July and returned to work, but applied to a job with a different employer and was offered the post. So she resigned from the job as of 31 July and worked full time (rather than hourly) until then. When she received her salary slip on 3 August (it was not ready on 31 July), she was surprised to find that her salary was 45% less than what she expected to receive. She enquired with her manager and the CEO, and today received the reply that because she had taken 6 days hols while her paid holiday entitlement was 1.7 days per month (which she says is not stated in the permanent contract), the 4.3 days she took above her hol entitlement was deducted from the monthly wage. She also says that given the number of hours that she actually worked in July, her hourly wage for July is less than £4 per hour, which well below the minimum wage at her age (she is 25).
My questions are: Should she have had pro-rate paid holiday entitlement as of 1 Dec 2014, accruing into the month of full time work she did for this employer? How would her paid holiday entitlement be calculated given the different hours every week (but exceeding 3 full days per week)? Given her contract in July is for a set annual salary, paid monthly, how come the hourly wage is so low? Is her July salary illegal given her age?
Many thanks
PS: I have not seen the contracts myself, therefore cannot give you more information on the specific terms and conditions.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. When you calculated her pay for July, did you deduct the time she had taken off by the employer (the 4.3 days) when calculating her wage?
Customer: replied 1 year ago.

The calculation we did was divide the actual salary by the number of hours worked in July, which turned out to be less than £4 per hour, so no we didn't take the deduction into account because it was only explained to her today.

But given she spent 7 months on an hourly contract, surely with the recent law regarding paid holidays affecting all types of contracts (or so I understand), she should have been able to draw on non-taken holiday days from these months before as part of the bigger picture? If not, could she ask to be paid for the hols she didn't take between Dec and June?

Expert:  Ben Jones replied 1 year ago.
Your interpretation is correct. Her holiday allowance would have included the period during which she was continuously employed by this employer, not the two different jobs she had with them. So if she was an employee of the company continuously since Dec, she would have been accruing holidays since she started with them. Obviously her entitlement would have been different in the period Dec-Jun when compared to July as her hours would have been different but an accrual would have taken place regardless. The only way the employer can refuse to allow the accrual in the first job would be if she was specifically advised that the holiday year runs from/to a specific date. For example, if the holiday year ended in June, then any holidays she had accrued between Dec and Jun would have been lost if she had not taken them by June. A new holiday year would have started in July and as such she would have then taken more than her current holiday allowance for this holiday year when she left in July. However, if no holiday year was specified, it is assumed that the holiday year runs from the start of her employment, that being Dec. So she would still be in the current holiday year which would run from Dec to Dec. You can calculate her entitlement to holidays for the period Dec-Jun here: https://www.gov.uk/calculate-your-holiday-entitlement As to her rate of pay, as a 25 year old who is not an apprentice, she would be entitled to a minimum of £6.50 an hour. If her average pay was below that then the employer would be in contravention of the National Minimum Wage regulations. If you believe that she has not been given the holidays she was due and they have deducted these from her pay then this would potentially amount to an unlawful deduction from wages, which is made illegal under the Employment Rights Act 1996. 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-tribunals2. 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: ***** ***** 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. The same applies to not being paid the minimum wage – that is illegal and the difference could be pursued at the same time. You can call ACAS to further information and assistance as they can help resolving pay disputes such as this one: https://www.gov.uk/pay-and-work-rights I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45319
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you, ***** ***** contact the various services as you mention.

Expert:  Ben Jones replied 1 year ago.
You are welcome all the best

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