Holiday allowance/law

[E90_M3Ross]

HTP99 said:

My pay is heavily commission based, my holiday pay is my basic plus a pro rata average daily amount of commission from the previous full year commission amount.

This became law a few years ago, I believe paid overtime has to be included too (not that this affects me), this came about because many commission based employees weren't taking their full yearly holiday entitlement, due to missing out on commission, I was one, my colleague same.

E90_M3Ross said:

Oh, and it turns out my base salary is below minimum wage. I'm not sure whether my boss is ignorant or crafty. I suspect the latter. Thing is, I'll never get paid less than minimum wage, however, if he were to pay me for bank holidays (which it transpires he must, to meet the minimum holiday pay allowance - the extra 1.6 weeks must be paid, even at base salary) then he'd be paying me at below minimum wage.

Regarding your basic being below minimum wage, this has also been brought up at work, I seem to recall as long as when your commission is added and this takes you above minimum wage then this is fine, if your commission plus basic doesn't take you above minimum wage for that month then your pay has to be topped up to hit minimum wage. (I think that's the gist of it, it never affected me, I just seem to recall a conversation about it)

Thank you. The issue around minimum wage comes with the additional holiday pay. We're entitled to 5.6 weeks per year of holiday pay. Only 4 of which need to be paid at the full amount (including commissions and bonuses based upon the 12 month average). The other 1.6 weeks need to be paid..... Does it seem right that they're not paid at even minimum wage? Well.... They aren't paid at all at the moment

[paulrockliffe]

Just read through this and I would suggest you speak to an employment solicitor, ideally one that's got some commercial experience and is a reasonably savvy.

The options that your employer offered a while ago aren't lawful. It's likely that the correct way to correct the situation is for you to agree a new contract, that pays you the same money as you've been getting, on average, but complies with the law. If you don't agree then the question is whether the Law then pushes them into a financial hole that results in a redundancy situation. A fire and rehire exercise may be the advise they get when they speak to their own solicitor.

Either way, you don't get anything from the situation, other than the risk that you get made redundant, or ruin your relationship and end up being forced out one way or another. The best option for you, financially, may be for you to leave on your own terms and then correct the historical situation as a one-off when you're out. But the best way to do that may not be straightforward and likely needs advice.

[Bonefish Blues]

Sorry to hear this is still rumbling on Ross

[mcflurry]

Could he retaliate and make the bands kick in higher, due to inflation?
For example, instead of having to reach £3500, the new target is £3850.

[E90_M3Ross]

mcflurry said:

Could he retaliate and make the bands kick in higher, due to inflation?
For example, instead of having to reach £3500, the new target is £3850.

Possibly, although I think that'd be a pretty hard argument, and unless he rises the prices of treatments again....

[E90_M3Ross]

Now been told we DON'T get paid for bank holidays. Clinic manager isn't sure after I said we should get some pay for the extra 1.6 weeks per year (my boss saying only 4 weeks is required if you earn by commission and bonuses.....) but law seems to suggest if you earn by commission/bonuses only 4 weeks required at full pay, the remainder of the 5.6 weeks should be at base salary..... But base salary lower than minimum wage..... She isn't sure so have suggested she contact acas..... wonder what they'll say!

[Mortarboard]

I'm not sure bank/public holiday is classed as holiday days, tbh.
Wasnt there something to the effect of "time in lieu or 20%of an average weeks pay, once 140 hours was worked the previous month" or some such?

Been a while, so my recollection may not be 100%

ACAS is your go-to (as usual!)

M.

[E90_M3Ross]

Mortarboard said:

I'm not sure bank/public holiday is classed as holiday days, tbh.
Wasnt there something to the effect of "time in lieu or 20%of an average weeks pay, once 140 hours was worked the previous month" or some such?

Been a while, so my recollection may not be 100%

ACAS is your go-to (as usual!)

M.

The legal minimum is 5.6 weeks per year. Bank holidays come out of those 5.6 weeks, therefore I think should be paid.

[Steve H]

It does seem that your employer will always be applying the interpretation that suits him best irrespective of whether it fits in with his legal obligations.

That leaves you with a question of if you are willing you force the issue and if it would be smart to do so -


Is your current annual pay actually competitive (however badly calculated) in your industry?

Could you move to another similar job with relative ease?

How much backpay would you legitimately be able to recoup if you were to enforce your legal rights?

Is staying in your current job more important to you than being paid in line with your legal rights?


The answers to these questions should tell you what you can/should do next.

[E90_M3Ross]

Steve H said:

It does seem that your employer will always be applying the interpretation that suits him best irrespective of whether it fits in with his legal obligations.

That leaves you with a question of if you are willing you force the issue and if it would be smart to do so -


Is your current annual pay actually competitive (however badly calculated) in your industry?

Could you move to another similar job with relative ease?

How much backpay would you legitimately be able to recoup if you were to enforce your legal rights?

Is staying in your current job more important to you than being paid in line with your legal rights?


The answers to these questions should tell you what you can/should do next.

These are all valid questions, ones which make the situation more difficult than it otherwise would be.

My current pay is fairly competitive, yes. Most clinics run a 40-50% take home for employees. I'd say, on average, I get 40%, maybe a tad more. The clinic does pay my indemnity insurance plus governing body fees (approx £2k/year, too).

Could I move to another job with ease? Hmm, not sure. I was offered a place at a clinic, but self employed. Not sure I fancy all the faff. I was offered 70% take home (the rest to cover their premises, reception staff pay etc). I'd probably earn more (once client base built up) but also a lot more hassle....

Overall holiday back pay would stand at a good £40k+

The last answer is probably yes, although I feel like I've been a good employee for 11 years and feel I've been robbed a little....

[Steve H]

Well the answers to 1,2 & 4 suggest you are staying where you are……….