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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44961
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I work part time, 25.5 hours a week, shifts. My contracted

Customer Question

I work part time, 25.5 hours a week, shifts. My contracted days include those that fall on bank holidays. At present I am paid for these days but now my employer wishes me to sign a new contract which means I will only receive a pro rata rate for this days. Of the 8 bank holidays in 2013 I will now only receive a pro rata rate. Is this something that is legal. I have worked for this company since February 2007. Thank you .
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.
Hello and thank you for your question, which I will be happy to assist you with. Please let me know what you are hoping to achieve?
Customer: replied 3 years ago.
I want to know if what my employer wants to do is actually legal? I already have a contract but this new one is by far less favourable than my existing one! They are not making any offer to me so that in fact I don't take a pay cut.
Expert:  Ben Jones replied 3 years ago.
Bank holidays and part time workers is an area of employment law that is subject to much discussion mainly because of the potential for unfavourable treatment against the part time workers. However, at the same time there is no direct legislation that deals with this issue and a lot is left to interpretation of what law is available.

You could argue that under the Part Time Workers Regulations 2000, under which it is a potential breach if your employer only gives part-time workers paid time off for bank holidays that fall on days on which they would normally work. That is because those part-time workers who do not normally work on the days that are being given off to others will be treated less favourably than comparable full-time workers, which is unlawful.

However, it has long been recommended that the simplest way to achieve equality in this situation is to give you pro-rated entitlement to all public holidays. This means that you will not be worse off than your full time colleagues because you will still get the part time equivalent to the bank holidays they get off. If you received all bank holidays off then you will be placed in a abetter position than them.

Notwithstanding the above, your employer is still trying to change your existing contract and you do not have to accept that. It is then for them to try and force the changes through if they can and that could give rise to a claim for unfair or constructive dismissal, depending on what they do next.

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you
Customer: replied 3 years ago.
I am still rather confused, I'm sorry!! Usually my work days are a Monday, Tuesday and Friday. At present I get a full days pay for these days, should they fall on a 'bank holiday'. Of the 8 bank holidays on 2013 I will now be only receiving a proportion of this in my pay. How can my employer enforce this if I have always received this?? To me I will be taking a pay cut! My other colleagues will get a pay rise!! Surely, I don't have to accept this?? What are my rights??? I wouldn't mind we are not talking about huge sums of money here!!! Would it not be better to bring everyone who doesn't already get paid in line with those who do??? I seem to be taking the cut to pay those who don't already receive it!!! I'm sorry to harp on!!
Expert:  Ben Jones replied 3 years ago.
No problem, I am here to clarify things for you. My apologies too if I appear to have slightly misunderstood your question. So what does your contract say about your holiday entitlement and how many holidays would you get this year of the new rule was introduced?
Customer: replied 3 years ago.
I would be entitled to 5 weeks annual holiday per year this is inclusive of bank and publics holidays recognised by the employer an a pro-rata basis.
My understanding is that I should get 5.6 weeks annual leave? Is this correct?
Expert:  Ben Jones replied 3 years ago.
Full time workers are entitled to a minimum of 5.6 weeks of holidays a year (28 days). As a part time worker you are only entitled to a pro rata of that. If you work 3 days a week then your annual leave entitlement would be 16.8 days a year. Would you be getting this once the changes are introduced?
Customer: replied 3 years ago.
Nope I will still get 5 weeks!
Expert:  Ben Jones replied 3 years ago.
Do you mean you will get a total of 5 weeks of holiday, or the pro rata equivalent of 5 weeks?
Customer: replied 3 years ago.
No I get 5 weeks not on pro rata!
Expert:  Ben Jones replied 3 years ago.
In that case you would already be getting way more than the minimum legal entitlement. You will not be entitled to get 5.6 weeks holiday as that only applies to full time workers. Therefore your main argument here is that this now amounts to a change to your contract of employment.

There are several ways in which an employer may try and make changes to an employee’s contract of employment. These are:

1. By receiving the employee’s express consent.
2. By forcefully introducing the changes (called 'unilateral change of contract').
3. By giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the changes.

If the employee agrees to the changes then that would usually put an end to the matter.

If the changes are introduced forcefully then the following options are open to the employee:

1. Start working on the new terms but making it clear in writing that they are working ‘under protest’. This means that the employee does not agree with the changes but is only working them because they feel they are forced to. In the meantime they should try and resolve the issue either by informal discussions or by raising a formal grievance.

2. If the changes are serious enough (e.g. a change to pay, duties, place of work, etc.) the employee may wish to consider resigning and claiming constructive dismissal. The resignation must be done without undue delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to the employee having at least 1 year’s continuous service.

3. Finally, if the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can justify the dismissal and the changes if they had a sound business reason for dismissing an employee who refuses to accept the variation in terms. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, the employee can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 1 year’s continuous would apply.

As your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do. I can then continue providing further advice and answer follow up questions if needed. Thank you.
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44961
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 3 years ago.
I thank you for your help in this matter, your final answers are I think the route I will have to consider! Again my renewed thanks, it must be so difficult to answer such questions, email is not always the best route, but it certainly helps when there is someone out there, prepared to listen! Kind regards, Jocelyn
Expert:  Ben Jones replied 3 years ago.
Email may not always be best but at least it gives you a permanent record of our advice which you can use in the future. All the best

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