FAO Ben Jones
I am trying to calculate the daily rate of holiday pay from my contract of employment.
There are 2 clauses in the contract relating to holiday pay in the contract, one relating to holiday pay when in employment and one relating to holiday pay on termination of employment.
The first clause states that holiday pay is based on the calculation of annual salary based upon the aggregate of the last 2 months basic salary pay (I had 2 levels of basic salary based on whether I hit monthly sales target). I am arguing that the daily rate should be based on the number of working days in the year, not calendar days,and is 233 as opposed to 365. Is this correct and will I need to show supporting evidence in case law to the court?
With regard to holiday pay on termination clause it states that the calculation method is based on annual salary(not basic annual salary) divided by 365 days. However, My former employer argues that they will also base the holiday pay outstanding upon the aggregate past 2 months basic salary to calculate the annual salary figure divided by 365 days, but I would like to argue that the annual salary should be calculated at the higher rate basic salary plus commission. Does this argument have merit? I believe that the employer is construing this vague clause in its favour so it pays me as little as possible.
Also, does holiday pay on termination mean holiday pay on termination of employment contract, or upon leaving employment. I am arguing that as I have not been paid my contractual payment in lieu, my employment has not been effectively terminated (geys v societe generale) and the employer is in breach.
Thank you for your assistance.