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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
Satisfied Customers: 38689
Experience:  Expert in UK Employment Law
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We employ a welder on a 3 day week contract and holidays were

Resolved Question:

We employ a welder on a 3 day week contract and holidays were given pro-rate as against our full time employee. Both parties agreed and signed Employment Contract – he has been in our service about 2 years now and no issues whatsoever with his work, timekeeping etc.

However since January 1st of this year and with an upturn in our workload he has worked a full 5 day week every week since January.

How do we calculate his holiday entitlement now to date and on-going. Is he due full holidays - 20 days plus Bank Holidays?

What if we have to reduce his working hours back again?

Is there a formulae we can apply?
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What would you like to achieve here please?

Customer:

Hello Ben - sorry. have you received my question?

Ben Jones :

yes thanks, XXXXX XXXXX if there is a dispute over his holidays or are you just generally enquiring?

Customer:

no dispute - though he has asked his foreman - we want to be fair but at the same time don't want to keep giving!!

Ben Jones :

Two issues here - how much holidays he is entitled to and how much he should be paid for taking the holiday.


 


First, how much holiday he is entitled to. He would accrue holidays pro rata so for the time he was working full time he would be getting the 28 days a year. Say for the first 6 months he was full time, he would have accrued 14 days' holiday. Then when he moved to part time 3 day a week work for the next 6 months he would have accrued 8.4 days holidays, making a total for the year of 22.8.


 


This issue aboput how much he will be paid was considered in the European Courts of Justice in the case of Zentralbetriebsrat. The decision can be summarised by the following example: a worker who, part way through a leave year, changes from full-time work (five days a week) to part-time work (three days a week), having accumulated but not taken a week's statutory annual leave. To not be treated less favourably because of his move to part-time work, the worker should, in principle, be able to take the accrued week's leave as if he were still full time. In other words, as the worker has effectively accumulated five days' paid statutory annual leave, this entitlement should not be reduced to three days' because of the new working hours.


 


However, this decision is not compatible with the UK's Working Time Regulations which calculate a week's pay for a week's statutory annual leave with reference to the worker's pay at the time when the leave is taken rather than at the time of accrual. So, if the worker in the above example takes his accrued week's leave after starting his part-time work, under the WTR his week's holiday pay would reflect his part-time rather than his full-time salary.

Customer:

Thanks Ben - to date he has taken only a couple of days holiday this year - so as full time since start of year and our holiday year - what should we give him holiday wise? holidays were all taken last year when part time - not allowed to carry forward any untaken holiday days.

Customer:

re how much should he be paid - would not have to pay him his usual day rate - same as his holiday entitlement - employees get paid full 8 hour day rate.

Customer:

sorry - would have to pay him ...............

Ben Jones : You need to calculate the time he has worked as a full timer and give him 28 days a year for that period, reduced to reflect the fact it was not a full year, so you reduce it pro rata. Pay wise it depends when he takes it, if he is part time when he takes it then you pay him the usual rate he is in as a part timer
Customer:

Thanks Ben - think that covers our question - probably if the push had come we would have paid him!1

Customer:

regards, shon

Ben Jones : My pleasure. It's not the easiest area of law so don't worry if you face further issues regarding it. Hopefully it will all be resolved though
Ben Jones, Solicitor
Satisfied Customers: 38689
Experience: Expert in UK Employment Law
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