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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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I am working agency on a "contract

Resolved Question:

hi,
I am working for an agency on a "contract for services " assignment. the assignment is long term ie. 2-3 years . I have applied for holidays at xmas this year 2016 , i have been told i can have them but wont get paid until i have accrued the days . i have worked on the same assignmenmt with no breaks in it for over 12mths now .
Can they with hold my holiday pay?
Thanks
Shane
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
Customer: replied 1 year ago.
Thanks
Expert:  Ben Jones replied 1 year ago.
What does it say in your contract about holiday pay?
Customer: replied 1 year ago.
7. ANNUAL LEAVE
7.1. The Agency Worker is entitled to paid annual leave according to the statutory minimum as provided by the Working Time Regulations from time to time. The current statutory entitlement to paid annual leave under the Working Time Regulations is 5.6 weeks (28days). 7.2. Entitlement to payment for leave under clause 7.1 accrues in proportion to the amount of time worked by the Agency Worker on Assignment during the Leave Year. 7.3. Under the Agency Workers Regulations, on completion of the Qualifying Period the Agency Worker may be entitled to paid and/or unpaid annual leave in addition to the Agency Worker's entitlement to paid annual leave under the Working Time Regulations and in accordance with clauses 7.1 and 7.2. If this is the case, any such entitlement(s), the date from which any such entitlement(s) will commence and how payment for such entitlement(s) accrues will be as set out in the relevant Assignment Details Form or any variation to the relevant Assignment Details Form. 7.4. All entitlement to leave must be taken during the course of the Leave Year in which it accrues and, save as may be set out in the relevant Assignment Details Form or any variation to the relevant Assignment Details Form, none may be carried forward to the next year. The Agency Worker is responsible for ensuring that all paid annual leave is requested and taken within the Leave Year. 7.5. If the Agency Worker wishes to take paid leave during the course of an Assignment s/he should notify the Employment Business of the dates of his/her intended absence giving notice of at least twice the length of the period of leave that s/he wishes to take. In certain circumstances the Employment Business may require the Agency Worker to take paid annual leave at specific times or notify the Agency Worker of periods when paid annual leave cannot be taken. Where the Agency Worker has given notice of a request to take paid annual leave in accordance with this clause, the Employment Business may give counter-notice to the Agency Worker to postpone or reduce the amount of leave that the Agency Worker wishes to take. In such circumstances the Employment Business will inform the Agency Worker in writing giving at least the same length of notice as the period of leave that it wishes to postpone or reduce it by. 7.6. Subject to clause 7.3, the amount of payment which the Agency Worker will receive in respect of periods of annual leave taken during the course of an Assignment will be calculated in accordance with and paid in proportion to the number of hours which the Agency Worker has worked on Assignment. 7.7. Subject to clause 7.3, in the course of any Assignment during the first Leave Year, the Agency Worker is entitled to request leave at the rate of one-twelfth of the Agency Worker’s total holiday entitlement in each month of the leave year. 7.8. Save where this clause is amended by the Assignment Details Form, where a bank holiday or other public holiday falls during an Assignment and the Agency Worker does not work on that day, then subject to the Agency Worker having accrued entitlement to payment for leave in accordance with clause 7.2 or clause 7.3 (if applicable), the Agency Worker may, upon giving the notice in clause 7.5, take a bank holiday or other public holiday as part of his/her paid annual leave entitlement. 7.9. Where this contract is terminated by either party, the Agency Worker shall be entitled to a payment in lieu of any untaken leave when verbally requested by the Agency Worker where the amount of leave taken is less than the amount accrued in accordance with clause 7 at the date of termination.
Expert:  Ben Jones replied 1 year ago.
Thank you for your response. I will review the relevant information and laws and will get back to you as soon as I can. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Expert:  Ben Jones replied 1 year ago.
Hello, thanks for your patience. Workers accrue leave as they work through the year. The reference is the holiday year rather than the calendar year, so you need to check when your holiday year runs from/to. You would then be able to calculate how many days holiday you have accrued by the time you are due to take the leave. A ballpark figure is 2.3 days a month for a full time worker. If you are due to take leave but have not yet a accrued the leave you are taking the employer does not have to pay you for it. They can treat it as unpaid leave and then pay you what you are due once the leave has been accrued. Another option is that they pay you anyway and if you leave before having accrued the taken leave they have the legal right to deduct that from your final pay. So either option is a possibility and neither has to be applied in preference to the other. This is your basic legal position. I have more detailed advice for you in terms of the rights you have should they completely fail to pay you, even once leave has accrued, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Customer: replied 1 year ago.
Hi thanks for that but I need to know if after 12mth of employment I am allowed to take holidays and be paid for them at the time of taking them.
The reason is my holiday year is from 16th Nov to 15th November the following year the place I work at has a factory shut down for Xmas for about 6days, I will never have accrued the correct days for this holiday and we'll always be paid short that week for pay. ACAS have said after twelve months I should be paid for any holidays as I take then and not have to accrue them. This is what I need to clarify.
Thanks
Shane
Expert:  Ben Jones replied 1 year ago.
Hello Shane, sorry I think I slightly misunderstood your question. The Working Time Regulations state that in the first year of employment the leave accrues on a pro rata basis, so that workers can only take leave if it has been accrued. These requirements do not apply after the initial year, although the employer can make them a requirement under a relevant written agreement, such as if hey include it in your contract. I cannot see anything which says that (it does deal with the first year rules but these do not apply to you), so you should be paid for the leave you take, even if not yet accrued. As mentioned the employer does have protection to deal with potential abuse of this or circumstances where someone simply leaves before they have accrued leave already taken - they can deduct any owed holiday pay from the final pay so it should make no difference to them. If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Expert:  Ben Jones replied 1 year ago.
Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.
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