Holiday allowance/law
Discussion
Mortarboard said:
What have they been paying you for holidays so far?
Is your current role/pay structure been relatively recent?
M.
Current pay structure has been the same since when I started (just over 10 years). I have never been paid for holiday, I lose out significantly. For example I had 1 week off in May. In April and June I grossed approx £5500 each month. In May I grossed basically £3kIs your current role/pay structure been relatively recent?
M.
Not only because of losing 1 week's commission but also missing the bonus I'd usually hit.
Mortarboard said:
It's worth their while (not just yours) finding out what it should be/should have been.
You may need to be prepared in case it happens that your missed bonus/es aren't included - they could be entirely discretionary
But would be good to have clarification on anyway.
M.
ACAS and citizen's advice have said if the bonuses are written in the contract they are not discretionary and need to be paid accordingly.You may need to be prepared in case it happens that your missed bonus/es aren't included - they could be entirely discretionary
But would be good to have clarification on anyway.
M.
Personally, I think the easiest way of working it out is as follows (for reference, I do 7 shifts per week).
"You have worked 23 shifts this month and have taken 7 shifts off. In those 23 shifts you have brought in £8500. Therefore, in 30 shifts you would have brought in (30/23 x £8500) £11086 and we will pay you as if that's how much you earned".
Yes and no (without having seen your actual contract wording).
-Bonus could be in the contract, but could still be discretionary. As in, the language in the contract might say "discretionary bonus of X on selling Y of product". A bit mean if it's a sales based compensation package.
-They could also say that you weren't there, didn't get the sales required, so neener neener.
Also beware that the "custom & practice" element may apply also, in that as it went on for so long, that the current situation has become the "de facto" contract. But that's a very specific legal construct, so you'd have to take legal advice on that.
If I was in your shoes, I'd be as agreeable as possible (it's gone on for so long anyway), and nudge firmly along the lines of "it seems x,y,z should have been included, what shall we do?", and avoid getting arsey. Legal routes are always an option in the future. Catch more flies with honey than vinegar
On the flipside, if you reported to me with the approach of "legally, you owe me x,y,z" and waving a printout of legislation/ACAS emails, I'd tell you I referred it the the legal team & HR. End of discussion, I'll let you know if/when I hear back.
M.
-Bonus could be in the contract, but could still be discretionary. As in, the language in the contract might say "discretionary bonus of X on selling Y of product". A bit mean if it's a sales based compensation package.
-They could also say that you weren't there, didn't get the sales required, so neener neener.
Also beware that the "custom & practice" element may apply also, in that as it went on for so long, that the current situation has become the "de facto" contract. But that's a very specific legal construct, so you'd have to take legal advice on that.
If I was in your shoes, I'd be as agreeable as possible (it's gone on for so long anyway), and nudge firmly along the lines of "it seems x,y,z should have been included, what shall we do?", and avoid getting arsey. Legal routes are always an option in the future. Catch more flies with honey than vinegar
On the flipside, if you reported to me with the approach of "legally, you owe me x,y,z" and waving a printout of legislation/ACAS emails, I'd tell you I referred it the the legal team & HR. End of discussion, I'll let you know if/when I hear back.
M.
Mortarboard said:
Yes and no (without having seen your actual contract wording).
-Bonus could be in the contract, but could still be discretionary. As in, the language in the contract might say "discretionary bonus of X on selling Y of product". A bit mean if it's a sales based compensation package.
-They could also say that you weren't there, didn't get the sales required, so neener neener.
Also beware that the "custom & practice" element may apply also, in that as it went on for so long, that the current situation has become the "de facto" contract. But that's a very specific legal construct, so you'd have to take legal advice on that.
If I was in your shoes, I'd be as agreeable as possible (it's gone on for so long anyway), and nudge firmly along the lines of "it seems x,y,z should have been included, what shall we do?", and avoid getting arsey. Legal routes are always an option in the future. Catch more flies with honey than vinegar
On the flipside, if you reported to me with the approach of "legally, you owe me x,y,z" and waving a printout of legislation/ACAS emails, I'd tell you I referred it the the legal team & HR. End of discussion, I'll let you know if/when I hear back.
M.
The bonuses are written in the contract saying "if you raise £xxxx you will get paid £xxx bonus". Re your second point, the law states that you should be remunerated as if you were working. So if, on average, you earn £xyz amount per month, by having a week off you should still get roughly £xyz, irrespective of whether you're working on a commission/bonus scheme.-Bonus could be in the contract, but could still be discretionary. As in, the language in the contract might say "discretionary bonus of X on selling Y of product". A bit mean if it's a sales based compensation package.
-They could also say that you weren't there, didn't get the sales required, so neener neener.
Also beware that the "custom & practice" element may apply also, in that as it went on for so long, that the current situation has become the "de facto" contract. But that's a very specific legal construct, so you'd have to take legal advice on that.
If I was in your shoes, I'd be as agreeable as possible (it's gone on for so long anyway), and nudge firmly along the lines of "it seems x,y,z should have been included, what shall we do?", and avoid getting arsey. Legal routes are always an option in the future. Catch more flies with honey than vinegar
On the flipside, if you reported to me with the approach of "legally, you owe me x,y,z" and waving a printout of legislation/ACAS emails, I'd tell you I referred it the the legal team & HR. End of discussion, I'll let you know if/when I hear back.
M.
I have been very polite so far, I have just said that it has been brought to my attention that I should be getting paid holiday pay to account for loss of earnings irrespective that we work on a commission/bonus basis and I'd appreciate it if he could look into it further for me. That's a summary, but I didn't mention I'd spoken to ACAS or Citizen's Advice etc. He replied saying if he legally has to do it then he will, but he'll contact the accountant to look into it.
I have spoken with ACAS, explained my full payment scheme/scenario and how it works and what is written in the contract, the person I spoke with was very clear - if I take a week off I should get paid as if I were working, INCLUDING any bonuses/commission that I would have otherwise earned, based upon my earnings over the past 12 months when I haven't had annual leave.
It gets complex when working it out, however, because where I have not been paid for my weeks off in the past, the past 12 months I have ultimately earned less than I should have, and therefore my "average" over the past 12 months will be lower than it ought to be. So it is a bit complex.
Edited by TyrannosauRoss Lex on Monday 17th October 20:44
TyrannosauRoss Lex said:
The bonuses are written in the contract saying "if you raise £xxxx you will get paid £xxx bonus".
Good to hear (and as should be expected for a sales type setup). Non-discretionary.But be aware that if its dependent on sales, its dependent on sales - not "sales+theoretical sales while on holiday". So the bonus might be a lost cause in that respect. Salary =/= sales.
Unless, of course, they weren't crediting you with "your" sales that came in while you were "out". Which they should of course be giving you the due credit (in both meanings of the word) for.
TyrannosauRoss Lex said:
Re your second point, the law states that you should be remunerated as if you were working. So if, on average, you earn £xyz amount per month, by having a week off you should still get roughly £xyz, irrespective of whether you're working on a commission/bonus scheme.
I have been very polite so far, I have just said that it has been brought to my attention that I should be getting paid holiday pay to account for loss of earnings irrespective that we work on a commission/bonus basis and I'd appreciate it if he could look into it further for me. That's a summary, but I didn't mention I'd spoken to ACAS or Citizen's Advice etc. He replied saying if he legally has to do it then he will, but he'll contact the accountant to look into it.
I have spoken with ACAS, explained my full payment scheme/scenario and how it works and what is written in the contract, the person I spoke with was very clear - if I take a week off I should get paid as if I were working, INCLUDING any bonuses/commission that I would have otherwise earned, based upon my earnings over the past 12 months when I haven't had annual leave.
It gets complex when working it out, however, because where I have not been paid for my weeks off in the past, the past 12 months I have ultimately earned less than I should have, and therefore my "average" over the past 12 months will be lower than it ought to be. So it is a bit complex.
Simple calculation for an accountant.I have been very polite so far, I have just said that it has been brought to my attention that I should be getting paid holiday pay to account for loss of earnings irrespective that we work on a commission/bonus basis and I'd appreciate it if he could look into it further for me. That's a summary, but I didn't mention I'd spoken to ACAS or Citizen's Advice etc. He replied saying if he legally has to do it then he will, but he'll contact the accountant to look into it.
I have spoken with ACAS, explained my full payment scheme/scenario and how it works and what is written in the contract, the person I spoke with was very clear - if I take a week off I should get paid as if I were working, INCLUDING any bonuses/commission that I would have otherwise earned, based upon my earnings over the past 12 months when I haven't had annual leave.
It gets complex when working it out, however, because where I have not been paid for my weeks off in the past, the past 12 months I have ultimately earned less than I should have, and therefore my "average" over the past 12 months will be lower than it ought to be. So it is a bit complex.
Ignore the holiday periods, and calculate accordingly.
For example, if you had 4 weeks holiday, calculate pay from ((total pay)-(pay during 4 weeks holiday)) and divide by 48.
If it turns out that they also should have been giving you various "sales" credit while you were on holiday, then yeah - they'll have to get out the pencil and figure that out. But shouldn't be too difficult either (do it on a year basis, then trim as above)
M.
TyrannosauRoss Lex said:
Except for the boss, he has to fork out more cash 
He'd have to have paid it anyway. Cheaper to pay the correct amount, rather than "correct amount, plus interest, plus punitive damages" after you've sailed off into the distance.If you have pension contribution matching, I'd mention that too, once the balls rolling
(as that will be higher also)
M.
Mortarboard said:
He'd have to have paid it anyway. Cheaper to pay the correct amount, rather than "correct amount, plus interest, plus punitive damages" after you've sailed off into the distance.
If you have pension contribution matching, I'd mention that too, once the balls rolling
(as that will be higher also)
M.
Ooh didn't think about pension! If you have pension contribution matching, I'd mention that too, once the balls rolling
(as that will be higher also)
M.
TyrannosauRoss Lex said:
I have spoken to ACAS who were incredibly helpful. They basically said "yes, you should get the same amount if you take a week off as if you were working" under the work time regulations act. This came in in 2014 I gather. Basically your holiday should be worked out at average earnings over the past 52 weeks.
They also said that holiday can be backdated for 2 years, possibly longer if a judge deems it suitable (I've been there for 10 years....). I am not looking for all of that, it'd cripple my employer, but it'd be nice to get paid for the holiday I've just had and moving forwards.
They said because my commission/bonus entitlement is written in contract they cannot change it unless I legally agree or if it's written they can change it (it isn't).
So I will tread carefully, ask my boss to look into it and ask if I am correct (which I know I am) then just be paid for the holiday I've just had and moving forwards. If it does go a little south I can then show him the ACAS and citizen's advice links. If that goes south they said you could take them to a tribunal and get a lot of backdated pay, but I can't see it coming to that.
Watch this space!
Good for you, I checked our contracts and the bonus is listed as un-contractual I wonder if that is their get out, it's a large FSTE 100 business (which actually means they have probably got it wrong) They also said that holiday can be backdated for 2 years, possibly longer if a judge deems it suitable (I've been there for 10 years....). I am not looking for all of that, it'd cripple my employer, but it'd be nice to get paid for the holiday I've just had and moving forwards.
They said because my commission/bonus entitlement is written in contract they cannot change it unless I legally agree or if it's written they can change it (it isn't).
So I will tread carefully, ask my boss to look into it and ask if I am correct (which I know I am) then just be paid for the holiday I've just had and moving forwards. If it does go a little south I can then show him the ACAS and citizen's advice links. If that goes south they said you could take them to a tribunal and get a lot of backdated pay, but I can't see it coming to that.
Watch this space!
Good luck with getting what you're owed.
So the meeting didn't go too well.
He basically said he couldn't afford an effective £5k pay rise for me and my 2 colleagues. It's a limited company so the accounts are available online....the company is doing OK.
He said 3 options:
1 - rewrites my contract, lowers commission so I earn less each month, but then get holiday pay so my annual income will be the same.
2 - we do nothing
3 - he makes me self employed.
I am not sure if he can do any of those without my strict agreement. Why is there an issue then? Well, I am happy with where I work, the atmosphere has generally been good, and I get on well with everyone. If I go for what I'm legally entitled to, I'm sure I'd get it, but my working atmosphere would be s
te, I risk the boss telling the receptionists to book me fewer patients so I earn less. Or I stick with how it is now but always feel hard done by, knowing what I know. Or, I agree to an effective pay cut to get what I'm legally entitled to. He said the numbers/commission/bonuses were drawn up before this law came in......
Rock. Me. Hard place.
He basically said he couldn't afford an effective £5k pay rise for me and my 2 colleagues. It's a limited company so the accounts are available online....the company is doing OK.
He said 3 options:
1 - rewrites my contract, lowers commission so I earn less each month, but then get holiday pay so my annual income will be the same.
2 - we do nothing
3 - he makes me self employed.
I am not sure if he can do any of those without my strict agreement. Why is there an issue then? Well, I am happy with where I work, the atmosphere has generally been good, and I get on well with everyone. If I go for what I'm legally entitled to, I'm sure I'd get it, but my working atmosphere would be s
te, I risk the boss telling the receptionists to book me fewer patients so I earn less. Or I stick with how it is now but always feel hard done by, knowing what I know. Or, I agree to an effective pay cut to get what I'm legally entitled to. He said the numbers/commission/bonuses were drawn up before this law came in......Rock. Me. Hard place.
I'm not sure what you expected his response to be!
The three options he gave you seem like he is wriggling out of his legal responsibilities. Truthfully sounds like you will be owed back pay BUT as I said previously tread carefully as things could get messy. It could end up with an employee filing for constructive dismissal some way down the line.
Your employer though sounds like he has not been acting legally/properly and wishes to continue that way.
The three options he gave you seem like he is wriggling out of his legal responsibilities. Truthfully sounds like you will be owed back pay BUT as I said previously tread carefully as things could get messy. It could end up with an employee filing for constructive dismissal some way down the line.
Your employer though sounds like he has not been acting legally/properly and wishes to continue that way.
Sounds like your boss is a reasonable chap and has offered some options and accepted things have not been correct in the past.
I suppose it depends on what you want - do you a) keep to principle and chase the money at risk of loosing goodwill/a nice place to work/your income (perhaps becuase you want to leave anyway) or b) do you level with your boss and come up with an agreement that suits you both but crucially keeps trust and integrity intact (which might not mean extra money but could mean other perks - flexi time, better pension payment, ownership opportunities, promotion (the boss clearly respects and probably needs you by levelling with you on options on something that needs to be fixed) .
I suppose it depends on what you want - do you a) keep to principle and chase the money at risk of loosing goodwill/a nice place to work/your income (perhaps becuase you want to leave anyway) or b) do you level with your boss and come up with an agreement that suits you both but crucially keeps trust and integrity intact (which might not mean extra money but could mean other perks - flexi time, better pension payment, ownership opportunities, promotion (the boss clearly respects and probably needs you by levelling with you on options on something that needs to be fixed) .
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