Holiday dispute: Help needed.
Discussion
[quote]Situation:
I have moved from a zero hours contract to a full time contract mid October.
On Zero Hours, I was paid holiday as it was accrued, therefore my holiday for the first two weeks of October was paid as I earned it.
On full time, I earn two days holiday for each full working month. This stumbles a little as in the first two quarters of the year, I earn just five days holiday per quarter.
My contract states a start date of October 15th. That is the full time contract. My ZH contract started in Mid November 2011.
There is confusion over both Christmas Holiday and the amount of Holiday I am owed.
I am fully flexible in my working hours but since September, I have been used solely on day shift working patterns with two nights out. My contract guarantees 40 hours per week.
I have to date in this calendar year, been unavailable for work for three days, (unpaid as on Zero Hours) and taken five days annual leave since moving to full time. One of said days AL was taken at the behest of the Traffic Manager as there was insufficient work available for all the full time drivers.
Relevant Contract Clauses.
4.1 - Entitlement to paid holidays is based on a current year basis. I.e., it is accrued and taken within the same year April 1st - March 31st
4.1.1 Entitlement during the first two years of employment will be in accordance with the table shown below.
5 Months = 8 days
6 Months = 10 days
4.1.4 - According to local requirements colleagues with holiday entitlement of 11 days or over during a year will have to hold three days to take at Christmas. Where this does not meet with operational requirements of the location, due to the customer service needs, these days will be taken at alternative times. Colleagues with no Christmas Holiday entitlement will be paid at your guaranteed hours at basic rate if they are available for work, but work is not available. You may be required to work during this period and if so you will be advised accordingly. Where three days have been held over, they can be taken earlier in the holiday year.
4.2.1 - Colleagues will be entitled to the eight statutory holidays as recognized by the company. At present these are as follows: (Only the relevant holidays are shown.)
New Years Day
Christmas Day
Boxing Day
Christmas Operating Times
Client site is closed 24th 25th 31st December and 1st January.
Very low working volumes are predicted for 27th and 28th December and drivers are being advised that they will either need to take annual leave or unpaid leave. Should there be less night drivers than necessary to operate the contract, the company may ask drivers from days to work either night trunking or night network delivery routes.
The rest of the story:
I had initially assumed that I did not have to retain holiday for use at Christmas as I will have less than 11 days actual holiday in the stated holiday year.
The TM originally agreed with my assessment but said that "I'm not paying you to sit at home so you will have to come in an wash trailers or paint the office or something."
The company then revised their position after consulting with the site administrator. Their position is that while I will only accrue 8 days holiday in the year, the rest of my holiday was paid as it was earned, therefore I will have had more than the 11 days, paid rather than taken. I would therefore have to take a minimum of two days at Christmas due to the needs of the business, potentially four.
Needless to say I was disappointed as I would likely not have enough holiday to cover Christmas, let alone a date in January which I had intended to book off prior to this coming up.
The next day, I spoke again with the TM confirming that, and I quote, "for the purposes of Holiday, my employment is regarded as continuous." The TM agreed and I queried at that point why I didn't have nine days holiday. The extra day being for the half of October that I didn't pocket the money as I accrued the holiday.
The TM then said that it was because holiday is accrued on a whole month basis, those two weeks don't count.
The situation currently stands that, compared to a colleague who has worked exactly the same period of time as me, I am a day of holiday down. I questioned that, and the TMs response was that I'm quids in because he probably would have had to rest me for two days in October if I hadn't been full time due to work volumes.
My understanding is that what possibly happened should and can not have any bearing on what actually did happen. That he probably wouldn't have worked me cant be taken into account now, because he did find work for me.
The questions I have:
1:: Who is right on the Christmas Holiday? Me or the Company? Do I have to hold back three days for Christmas based on my Zero Hours employment or does my new contract start us from a clean sheet from the 15th October? (Is it important that my employee number has not changed?)
2:: Who is right about the correct amount of accrued holiday? Should I have 8 or 9 days? If eight, should the company pay now the holiday which would have been accrued in the last two weeks of October?
3:: Can the company force an employee to take holiday when they are unable to work the driver? This question obviously exempts the three days notified in the contract.
4:: If I am in fact owed a ninth day, can I refuse to use it at Christmas, or does that come under "Reasonable instructions from Managers/Supervisors" and refusal constitute misconduct?
5:: If the company opts instead to work me on site during the otherwise non-working days in dispute, are they able to have me working alone, on site, with only security in their gatehouse and no supervisor?
[/quote]
The above was posted on a Truck Drivers forum. Which may give you a clue as to my particular line of country.
For clarification, TM is Traffic Manager, in other words my direct line manager.
I have moved from a zero hours contract to a full time contract mid October.
On Zero Hours, I was paid holiday as it was accrued, therefore my holiday for the first two weeks of October was paid as I earned it.
On full time, I earn two days holiday for each full working month. This stumbles a little as in the first two quarters of the year, I earn just five days holiday per quarter.
My contract states a start date of October 15th. That is the full time contract. My ZH contract started in Mid November 2011.
There is confusion over both Christmas Holiday and the amount of Holiday I am owed.
I am fully flexible in my working hours but since September, I have been used solely on day shift working patterns with two nights out. My contract guarantees 40 hours per week.
I have to date in this calendar year, been unavailable for work for three days, (unpaid as on Zero Hours) and taken five days annual leave since moving to full time. One of said days AL was taken at the behest of the Traffic Manager as there was insufficient work available for all the full time drivers.
Relevant Contract Clauses.
4.1 - Entitlement to paid holidays is based on a current year basis. I.e., it is accrued and taken within the same year April 1st - March 31st
4.1.1 Entitlement during the first two years of employment will be in accordance with the table shown below.
5 Months = 8 days
6 Months = 10 days
4.1.4 - According to local requirements colleagues with holiday entitlement of 11 days or over during a year will have to hold three days to take at Christmas. Where this does not meet with operational requirements of the location, due to the customer service needs, these days will be taken at alternative times. Colleagues with no Christmas Holiday entitlement will be paid at your guaranteed hours at basic rate if they are available for work, but work is not available. You may be required to work during this period and if so you will be advised accordingly. Where three days have been held over, they can be taken earlier in the holiday year.
4.2.1 - Colleagues will be entitled to the eight statutory holidays as recognized by the company. At present these are as follows: (Only the relevant holidays are shown.)
New Years Day
Christmas Day
Boxing Day
Christmas Operating Times
Client site is closed 24th 25th 31st December and 1st January.
Very low working volumes are predicted for 27th and 28th December and drivers are being advised that they will either need to take annual leave or unpaid leave. Should there be less night drivers than necessary to operate the contract, the company may ask drivers from days to work either night trunking or night network delivery routes.
The rest of the story:
I had initially assumed that I did not have to retain holiday for use at Christmas as I will have less than 11 days actual holiday in the stated holiday year.
The TM originally agreed with my assessment but said that "I'm not paying you to sit at home so you will have to come in an wash trailers or paint the office or something."
The company then revised their position after consulting with the site administrator. Their position is that while I will only accrue 8 days holiday in the year, the rest of my holiday was paid as it was earned, therefore I will have had more than the 11 days, paid rather than taken. I would therefore have to take a minimum of two days at Christmas due to the needs of the business, potentially four.
Needless to say I was disappointed as I would likely not have enough holiday to cover Christmas, let alone a date in January which I had intended to book off prior to this coming up.
The next day, I spoke again with the TM confirming that, and I quote, "for the purposes of Holiday, my employment is regarded as continuous." The TM agreed and I queried at that point why I didn't have nine days holiday. The extra day being for the half of October that I didn't pocket the money as I accrued the holiday.
The TM then said that it was because holiday is accrued on a whole month basis, those two weeks don't count.
The situation currently stands that, compared to a colleague who has worked exactly the same period of time as me, I am a day of holiday down. I questioned that, and the TMs response was that I'm quids in because he probably would have had to rest me for two days in October if I hadn't been full time due to work volumes.
My understanding is that what possibly happened should and can not have any bearing on what actually did happen. That he probably wouldn't have worked me cant be taken into account now, because he did find work for me.
The questions I have:
1:: Who is right on the Christmas Holiday? Me or the Company? Do I have to hold back three days for Christmas based on my Zero Hours employment or does my new contract start us from a clean sheet from the 15th October? (Is it important that my employee number has not changed?)
2:: Who is right about the correct amount of accrued holiday? Should I have 8 or 9 days? If eight, should the company pay now the holiday which would have been accrued in the last two weeks of October?
3:: Can the company force an employee to take holiday when they are unable to work the driver? This question obviously exempts the three days notified in the contract.
4:: If I am in fact owed a ninth day, can I refuse to use it at Christmas, or does that come under "Reasonable instructions from Managers/Supervisors" and refusal constitute misconduct?
5:: If the company opts instead to work me on site during the otherwise non-working days in dispute, are they able to have me working alone, on site, with only security in their gatehouse and no supervisor?
[/quote]
The above was posted on a Truck Drivers forum. Which may give you a clue as to my particular line of country.
For clarification, TM is Traffic Manager, in other words my direct line manager.
A few thoughts beneath each quuestion
The above was posted on a Truck Drivers forum. Which may give you a clue as to my particular line of country.
For clarification, TM is Traffic Manager, in other words my direct line manager.
nsmith1180][quote said:
Situation:
The questions I have:
1:: Who is right on the Christmas Holiday? Me or the Company? Do I have to hold back three days for Christmas based on my Zero Hours employment or does my new contract start us from a clean sheet from the 15th October? (Is it important that my employee number has not changed?)
Your contract has changed but that does not stop your employment being continuous, otherwise everyone would get a new contract every year to deny them their employment rights
2:: Who is right about the correct amount of accrued holiday? Should I have 8 or 9 days? If eight, should the company pay now the holiday which would have been accrued in the last two weeks of October?
The argument about Holiday in October is a bit petty, the fact that your terms were changed mid month should not cause you to lose out - if it was me I'd pro-rata it with half the allowance for a month on the old contract, half on the new
3:: Can the company force an employee to take holiday when they are unable to work the driver? This question obviously exempts the three days notified in the contract.
If you are on a zero hours contract they can stand you down unpaid, if you choose to take holiday to protect your income that is your choice
4:: If I am in fact owed a ninth day, can I refuse to use it at Christmas, or does that come under "Reasonable instructions from Managers/Supervisors" and refusal constitute misconduct?
Your contract states that you have to save 3 days for Christmas and if you have the correct allowance for you to be requested to take it then it would be a reasonable request etc.
5:: If the company opts instead to work me on site during the otherwise non-working days in dispute, are they able to have me working alone, on site, with only security in their gatehouse and no supervisor?
As a driver you work alone all day so I guess they would, unless the work is of an especially hazardous nature The questions I have:
1:: Who is right on the Christmas Holiday? Me or the Company? Do I have to hold back three days for Christmas based on my Zero Hours employment or does my new contract start us from a clean sheet from the 15th October? (Is it important that my employee number has not changed?)
Your contract has changed but that does not stop your employment being continuous, otherwise everyone would get a new contract every year to deny them their employment rights
2:: Who is right about the correct amount of accrued holiday? Should I have 8 or 9 days? If eight, should the company pay now the holiday which would have been accrued in the last two weeks of October?
The argument about Holiday in October is a bit petty, the fact that your terms were changed mid month should not cause you to lose out - if it was me I'd pro-rata it with half the allowance for a month on the old contract, half on the new
3:: Can the company force an employee to take holiday when they are unable to work the driver? This question obviously exempts the three days notified in the contract.
If you are on a zero hours contract they can stand you down unpaid, if you choose to take holiday to protect your income that is your choice
4:: If I am in fact owed a ninth day, can I refuse to use it at Christmas, or does that come under "Reasonable instructions from Managers/Supervisors" and refusal constitute misconduct?
Your contract states that you have to save 3 days for Christmas and if you have the correct allowance for you to be requested to take it then it would be a reasonable request etc.
5:: If the company opts instead to work me on site during the otherwise non-working days in dispute, are they able to have me working alone, on site, with only security in their gatehouse and no supervisor?
The above was posted on a Truck Drivers forum. Which may give you a clue as to my particular line of country.
For clarification, TM is Traffic Manager, in other words my direct line manager.
Thanks for your input. I have addressed each point in bold italics to keep it all together.
Jasper Gilder said:
A few thoughts beneath each quuestion
nsmith1180 said:
Situation:
The questions I have:
1:: Who is right on the Christmas Holiday? Me or the Company? Do I have to hold back three days for Christmas based on my Zero Hours employment or does my new contract start us from a clean sheet from the 15th October? (Is it important that my employee number has not changed?)
Your contract has changed but that does not stop your employment being continuous, otherwise everyone would get a new contract every year to deny them their employment rights
This is my position completely. I am feeling that if my contract is stating that "Your service is regarded as continuous from 15th October 2012, My zero hours service should be disregarded with respect to clause 4.1.4
2:: Who is right about the correct amount of accrued holiday? Should I have 8 or 9 days? If eight, should the company pay now the holiday which would have been accrued in the last two weeks of October?
The argument about Holiday in October is a bit petty, the fact that your terms were changed mid month should not cause you to lose out - if it was me I'd pro-rata it with half the allowance for a month on the old contract, half on the new
While I agree that it can seem petty, if the company is going to pick and choose which clauses apply in this case and which ones don't, I feel that I should be granted the additional day's paid leave to cover the difference.
3:: Can the company force an employee to take holiday when they are unable to work the driver? This question obviously exempts the three days notified in the contract.
If you are on a zero hours contract they can stand you down unpaid, if you choose to take holiday to protect your income that is your choice
But I am no longer on a zero hours contract. If they choose to stand me down on a day that I am available to work and there is no work to be done, I should be paid at a basic rate, not forced to take holiday, no?
4:: If I am in fact owed a ninth day, can I refuse to use it at Christmas, or does that come under "Reasonable instructions from Managers/Supervisors" and refusal constitute misconduct?
Your contract states that you have to save 3 days for Christmas and if you have the correct allowance for you to be requested to take it then it would be a reasonable request etc.
But this is the key point in dispute. If my employment is regarded as continuous only from mid October, I do not have sufficient holiday to be required to take it.
5:: If the company opts instead to work me on site during the otherwise non-working days in dispute, are they able to have me working alone, on site, with only security in their gatehouse and no supervisor?
As a driver you work alone all day so I guess they would, unless the work is of an especially hazardous nature
This is a good point. The only thing which could throw a spanner in their works would be the customer who owns the site. It depends on their policy.The questions I have:
1:: Who is right on the Christmas Holiday? Me or the Company? Do I have to hold back three days for Christmas based on my Zero Hours employment or does my new contract start us from a clean sheet from the 15th October? (Is it important that my employee number has not changed?)
Your contract has changed but that does not stop your employment being continuous, otherwise everyone would get a new contract every year to deny them their employment rights
This is my position completely. I am feeling that if my contract is stating that "Your service is regarded as continuous from 15th October 2012, My zero hours service should be disregarded with respect to clause 4.1.4
2:: Who is right about the correct amount of accrued holiday? Should I have 8 or 9 days? If eight, should the company pay now the holiday which would have been accrued in the last two weeks of October?
The argument about Holiday in October is a bit petty, the fact that your terms were changed mid month should not cause you to lose out - if it was me I'd pro-rata it with half the allowance for a month on the old contract, half on the new
While I agree that it can seem petty, if the company is going to pick and choose which clauses apply in this case and which ones don't, I feel that I should be granted the additional day's paid leave to cover the difference.
3:: Can the company force an employee to take holiday when they are unable to work the driver? This question obviously exempts the three days notified in the contract.
If you are on a zero hours contract they can stand you down unpaid, if you choose to take holiday to protect your income that is your choice
But I am no longer on a zero hours contract. If they choose to stand me down on a day that I am available to work and there is no work to be done, I should be paid at a basic rate, not forced to take holiday, no?
4:: If I am in fact owed a ninth day, can I refuse to use it at Christmas, or does that come under "Reasonable instructions from Managers/Supervisors" and refusal constitute misconduct?
Your contract states that you have to save 3 days for Christmas and if you have the correct allowance for you to be requested to take it then it would be a reasonable request etc.
But this is the key point in dispute. If my employment is regarded as continuous only from mid October, I do not have sufficient holiday to be required to take it.
5:: If the company opts instead to work me on site during the otherwise non-working days in dispute, are they able to have me working alone, on site, with only security in their gatehouse and no supervisor?
As a driver you work alone all day so I guess they would, unless the work is of an especially hazardous nature
Most companies allow a full time employee to take the holiday they would accrue for a year before they actually accrue it. Obviously if they leave before the end of the holiday year, this has to be taken into account.
Also on your zero hours contract, they're not supposed to just pay the holiday, you have to take it IIRC.
Also on your zero hours contract, they're not supposed to just pay the holiday, you have to take it IIRC.
As there is a significant change in terms, your zero hours contract should have been terminated and the 40 hours one begun, but without a break in time served.
A company can insist on holidays being used when they say so, this is down to business needs which is a bit of a bugger and not just to you.
A company can insist on holidays being used when they say so, this is down to business needs which is a bit of a bugger and not just to you.
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