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Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor
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# You replied 22 June 2014 13:48 EST I have been taking back

You replied
22 June 2014 13:48 EST
I have been taking back the overtime I have worked through by living the office earlier. Now he is calculating the holiday entilitlement only on the hours I acually worked. In my opinion it should be full hours. The other thing is that he is taking away 30 min unpaid break from the hours I have actually worked, so he is deducing my overtime more. If I have worked 127 hrs out of 178.50 in a month, He is taking away 10.50 hrs unpaid break from 127 hrs - 10.50 hrs, so he is saying I have used 62 hrs of overtime. I thing he should calculate like: 178.50 hrs - 10.50 hrs(break)= 168 - 127 hrs = 41 hrs. Which way is correct? We have never agreed a certain time for a break

Ben Jones :

Hello again, when your employer calculates holiday pay it would only include overtime in the calculations if it is classified as ‘guaranteed’ overtime. In other words if you have no choice but to work it then it should be included, however if it is optional and you choose whether to do it or not, then it would not normally be included in these calculations.

If the breaks are unpaid they cannot be used in the calculation of the holiday pay either – you are not paid for that time and it is not included in the average of your pay, so cannot be used. Had they been paid breaks then it would have been reasonable to expect them to include it.

Customer:

I Was taking back previous overtime, so was working 5 hrs instead of 8.50 hrs. Now he is taking 5 hrs a day a basis of his calculation of holiday entilitlement.

Customer:

Can he do it this way?

Customer:

Can he use the worse calculation to deduce my overtime? I still have some of overtime left to pay, so I need to know how many hours?

Ben Jones :

Are you contracted to work specific hours?

Customer:

If I was working 5 hrs he is taking away 30 min break, so he says I worked 4 and a half and he is taking away 3.5 hrs of overtime then

Customer:

My working hours were between 8.30 17.00

Ben Jones :

ok if that was the case and you had contracted hours which you worked either on the day or by taking overtime towards them, you should still get paid based on the contracted hours. But the unpaid breaks will be taken away from the calculations - you cannot use time for which you were not paid in order to calculate holiday pay

Customer:

Sorry he is taking away 4 hrs of overtime

Customer:

Sto holiday entilitlement should be based on contracted hours then?

Ben Jones :

yes, unless you obviously did not work them, but in this case you did, although it was at different times

Customer:

I was paid for 8 hrs. Normally I would be in the office 8.50 hours but I was 5 hrs

Customer:

I am saying I have used 3 hrs of overtime. He is saing 3.5 hrs. Who is right?

Ben Jones :

you can expect to be use the contracted hours when calculating holiday pay, even if you offset them with overtime but you cannot expect to use the contracted hours and the overtime on top. As to the overtime worked I can't say who is right - depends on what actually happened, whether any records exist of how many hours you worked and so on

Customer:

I had a time sheets I have recorded on my arrivals and times of leaving

Ben Jones :

ok that will help but the employer could say you did not record the hours correctly or accurately so it is really a matter of whose account looks more plausible

Customer:

In fact he was seeing me each single day. It is an office of 2 people. He doesn't denays me arrivals and leaving times. I said to him he knows that I wasn't a curly taking a break When I was working less than 6 hrs.

Customer:

He said he just has a right to take them out from my real working time, not from the contracted hours

Ben Jones :

as mentioned the breaks can be taken off if they were taken, or if the contract said that you must take the unpaid breaks - for example you cannot work through a period of unpaid breaks that you had to take under contract and then expect to be paid - it is your chiuce to work through it and you do so knowing you will not get paid for them

Customer:

Thank you

Ben Jones :

you are welcome as usual