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cityguru, Solicitor
Category: Employment Law
Satisfied Customers: 13329
Experience:  Senior lawyer with 30 years experience
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My contract states we start at 8 till 430 meaning we do 40

Customer Question

My contract states we start at 8 till 430 meaning we do 40 hours a week is it right for my employer to only pay 40 hours holiday pay when in fact we always do 47 hours minimum often 52 or more? Not one employee ever works just 40 hours.
Submitted: 4 years ago.
Category: Employment Law
Expert:  cityguru replied 4 years ago.
How are you paid? At a fixed rate with overtime or on an hourly rate?

If you are paid at a fixed rate say £x per week plus overtime it is normally the cue that you get paid during holidays at the fixed rate. If you work on the basis of hourly pay then it should be the average over the previous 12 weeks. It should be covered by your terms and conditions of employment. Most companies pay at the basic rate for fixed pay workers and exclude overtime.
Customer: replied 4 years ago.

Our house can change from week to week so we are paid for hours worked and the minimum we do is 47 but only ever get 40 hours holiday pay even if we have worked say 12 hour days for the previous 3 months if this is unlawful what can be done about it?

Expert:  cityguru replied 4 years ago.
What does your contract say? Do you have a basic level of pay or are you paid solely for hours worked.

If you are paid at a basic rate set out in your contract then normally that is the rate that will apply to your holiday pay.

if you are not guaranteed any pay and are paid for hours worked then your pay , as I mentioned, should be based upon the average.

if you are underpaid holiday pay you can bring an employment tribunal claim for the shortfall.
Customer: replied 4 years ago.

Paid for hours worked if we only do 40 hours because we have had a day off then we only get 40 hours so no we are not guaranteed a set wage just paid by the hour for hours worked and overtime is only classed as overtime when we work a sat or Sunday but it seems like they think its ok to only pay 40 hour holiday pay because our start and finishing times in the contract mean we are working just 40 hours even though we never work to the stated hours and always do more

Expert:  cityguru replied 4 years ago.
What does for contract say your pay is? You say if you don't work 40 hours you are paid for 40 hours but suppose you had one day offing a week but worked 40 hours swell in that week how much would you be paid for the week?
Customer: replied 4 years ago.

No I say if we only work 40 hours we only get paid 40 hours if we only worked 8 hours in the week we would only get 8 hours pay we only get paid for hours worked

Expert:  cityguru replied 4 years ago.
ok well in that case you should be paid holiday pay used upon the average hours worked over the previous 12 weeks.

In the example I gave if you had a does holiday and worked 40 hours in the next from day shut were only paid for 40 hours you would not be paid of your holiday. Your employer is obliged to pay you a minimum number of day holiday a year. It sounds as if you have a valid claim. You need to work out how much you are being under paid and then present a claim in writing. If the employer will not pay you can bring an employment tribunal claim
Customer: replied 4 years ago.

That's what I thought if I don't work sat or Sunday or after 5 Monday to Friday then my hours are always 47 so when I take my holidays say 2 weeks off and he only pays 80 hours then I'm 14 hours short its like we are robbed 7 hours every time we take 5 days off

Expert:  cityguru replied 4 years ago.
Ok well you need to pursue this with your employer then. Good luck. Come back if I can assist further