Employment law - holiday pay

[Silent1]

I’m waiting on legal advice but I’d be interested to see what the opinion is in here from the learned friends amongst our members.

An employee has a full time job with a minimum of 40 hours a week guaranteed whether they work or not.
Their start time and hours isn’t set and varies day to day because they drive an HGV, they’re also paid hourly.
Their contract states they will be paid 9 hours for each day of holiday taken.
They currently average 15 hours at work each day based on a 52 week average.

The guidance for working out holiday states it must be either a 12 week rolling average or an average of the last 52 weeks.

Can their contract over-ride government guidance or is it law? If it can, what stops people paying 1 hour a day for 28 days holiday?

When they work they are paid for their breaks etc, it’s a simple everything is paid from clock on to clock off minus 45 for their legally mandated breaks.

When working out their holiday, is it a simple average pay per week divided by 5 to get their daily holiday

Or

Can the breaks (that they were paid for when at work) be deducted, so despite being at work for 15 hours their tachograph only shows 8 hours work for example so that’s the pay, 8 hours?

There’s 2 thoughts in the office, one is that the holiday pay should be an average of the pay received each day, the other suggestion is that despite paying breaks when at work we only have to pay the actual time worked when they’re on holiday.

To make it easier, they’re a truck driver and the breaks are taken from the tachograph, it’s not necessarily that they are on break when the tacho shows break, but the breaks are being used to bring down the working time for the week.

[Jasandjules]

The first question which may assist is what has historically been paid?
ETA Actually the first question is what does the contract say but I presumed from the OP there was no contract - if there is, what does it say...

Edited by Jasandjules on Thursday 23 July 18:30

[CzechItOut]

Are they being paid just for their 9 contractual hours per day or for the 15 hours per day they actually work?

[edc]

You can pay more than required by the law but not less.

[Silent1]

Jasandjules said:

The first question which may assist is what has historically been paid?
ETA Actually the first question is what does the contract say but I presumed from the OP there was no contract - if there is, what does it say...

Edited by Jasandjules on Thursday 23 July 18:30

Their contract says 9 hours will be paid per day of holiday taken, the average amount of hours worked is 15 per day.

CzechItOut said:

Are they being paid just for their 9 contractual hours per day or for the 15 hours per day they actually work?

They’re paid for the full 15 hours when they’re working

[Silent1]

edc said:

You can pay more than required by the law but not less.

But is the 12 week rolling average or 52 week average law or guidance?

[Jasandjules]

Silent1 said:

They’re paid for the full 15 hours when they’re working

What have they been paid historically, just the nine hours?

However now they will be required to pay the 15 hours as the overtime is included for the purposes of the WTD whether that overtime is compulsory or voluntary and whether or not it is guaranteed or not.

[CzechItOut]

Silent1 said:

But is the 12 week rolling average or 52 week average law or guidance?

It is the average of the previous 52 weeks. This came into force at the start of this tax year.

[Silent1]

Jasandjules said:

Silent1 said:

They’re paid for the full 15 hours when they’re working

What have they been paid historically, just the nine hours?

However now they will be required to pay the 15 hours as the overtime is included for the purposes of the WTD whether that overtime is compulsory or voluntary and whether or not it is guaranteed or not.

When they work they’re paid from the minute they get in the truck to the minute they get out, minus 45 minutes for their legally mandated breaks.
Holiday has been paid on the basis of 9 hours is a days holiday, the argument for this is that the WTD limits a truck driver to 45 hours work a week, except breaks aren’t counted in this calculation so most truck drivers will record far more breaks than they’re actually doing to the point that a tachograph despite it supposed to be an accurate record it isn’t.


Also let me be clear, in the contract there’s no set hours you’re expected to work, it just states you’ll be paid for 40 hours whether you work it or not but you must do all work offered to you.

[crofty1984]

anonymous said:

[redacted]

Well I didn't know that!

[Jasandjules]

crofty1984 said:

Well I didn't know that!

The case is Bear Scotland Ltd and others v Fulton and others [2015] IRLR 15

[Chuffedmonkey]

anonymous said:

[redacted]

Our company introduced this a year or so back. If we have a week or 2 off (salaried) then we also get an average overtime payment form previous months. It might just be our team but our on call rota is set a year in advanced and we book holidays around it. I am aware this is not the case in other areas of the business. In effect I get paid more for having a week off.

I also believe if you earn commission this is also now included in holiday pay. I don't earn commission but i am sure it is now paid.

Edited by Chuffedmonkey on Tuesday 28th July 23:15

[Chuffedmonkey]

I forgot to add to the above but its only paid for the first 20 days or so, I cant remember the exact amount but I think its the minimum holiday period the government say that employers have to give to employees.

[Road2Ruin]

I would be more worried about the RTWTD if I were you. An average of 15 hours per day puts him well over the 48 hour week. It is also an issue under EU regs as the driver cannot exceed a 15 hour day EVER and you said an average, which implies more than 15 hours at some point!