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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44874
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I work rentals a car hire firm which is a franchise

Customer Question

I work for Kent rentals a car hire firm which is a franchise of europcar Iv worked there for 4.5 years as a car driver/valeter Iv a contract for 35 hours per week but have never worked those hours I was promised I would work 55hours plus per week like all the other drivers which is what I have done ever since I worked there but the 5 hours we work on a Saturday is separated on our payslips as compulsory overtime so when we have holidays he only pays us for 50 hours not 55 as he says the 5 hours is overtime and not part of our contractual hours how do I stand on this and can I claim the 5 hours from the owner plus the previous years and interest also we have been told that he is giving up the franchise and that either europcar or another person will take over the franchise how do I stand with this and what are my rights with this
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, are you an employee or self employed?
Customer: replied 1 year ago.
Hello I'm an employee
Customer: replied 1 year ago.
I'm an employee
Expert:  Ben Jones replied 1 year ago.
Thank you for your response. I will review the relevant information and will get back to you as soon as possible.
Please do not respond to this message as it will just push your question to the back of the queue and you may experience delays.
Expert:  Ben Jones replied 1 year ago.
Many thanks for your patience. Under law, workers are entitled to be paid during statutory annual leave at a rate of a week's pay for each week of leave.
How a week’s pay is calculated will depend on your hours of work and whether you have normal working hours, or no normal working hours.
Generally, a worker who has "normal working hours" will have their week's pay calculated with reference to those hours. This usually means basic salary, disregarding any overtime hours (except guaranteed, compulsory overtime).
This is quite a complex and contested area in employment law and no definitive answer exists as to whether all overtime should be included in the calculation of holiday pay. The main cases are Williams and others v British Airways and Lock v British Gas Trading Ltd, which suggest that overtime should be included.
Some other tribunal decisions which dealt with this:
• Neal v Freightliner Ltd, which held that a worker's overtime payments had to be taken into account when calculating his holiday pay.
• Fulton and another v Bear Scotland Ltd, which decided that a worker who worked regular overtime as a matter of course was entitled to have that overtime reflected in his holiday pay.
So you have legal backing to argue that these hours should be included in holiday pay. You could make a claim for the backdated hours but not interest.
As to the proposed transfer, if that happens the new employer should take you on with the exact same contractual terms you are working under now. So nothing should change apart from the name of the employer.
This is your basic legal position. I have more detailed advice for you in terms of the steps you need to follow to pursue the holiday pay, 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, leaving a rating will not close the question and we can continue this discussion. Thank you
Customer: replied 1 year ago.
I have a contract to work 35 hours but have never worked these hours it's always been 55 plus we have to work 10 hours a day plus overtime till we finish mon til fri and we have to work Saturdays 8till 1 or until we finish its not opptional we are paid 55 hours a week but when we have a weeks holiday we only get paid for working 50 hours Monday to Friday Iv been doing this for 4 years what is now my legal contract ? And how do I stand when the new company take over as I have a contract of 35 hours but work 55 hours
Expert:  Ben Jones replied 1 year ago.
It could well be the case that you now have an implied contract in place of the written one. This happens when something is applied consistently over a period of time and it becomes a contractual term through custom and practice. So you would be able to argue with the new company that your contract is now for 55 hours because this has been a consistently applied practice over the years. Hope this clarifies?
Customer: replied 1 year ago.
How do I go about pursing the holiday pay what do I have to do
Expert:  Ben Jones replied 1 year ago.
You would need to make a claim in the employment tribunal. Before you can do that you must go through ACAS and use their free conciliation service to try and negotiate a settlement with the employer but if that is not possible you will be given permission to proceed to tribunal and make an official claim. If you could please leave your rating for all of the responses so far I would be grateful. I can then discuss the next steps in some more detail
Customer: replied 1 year ago.
Please could you tell me in more detail how I go about the holiday pay and claiming the previous years holiday pay for Saturdays through Acas
Expert:  Ben Jones replied 1 year ago.
It is becoming uneconomical for me to continue with this query unfortunately as I have not been credited for the time already spent dealing with it, so I won't be able to continue, sorry
Customer: replied 1 year ago.
You told me it was uneconomic to carry on for me so I wasn't fully informed
Expert:  Ben Jones replied 1 year ago.
Hello, I have opted out of the question as I have not received your rating for the detailed advice given so far, which means I am not credited for my time.

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