Category Archives: Statutory Holiday

Working out holiday pay

holiday-calculationsSUMMARY: With holiday season upon us we have produced a FAQs fact sheet to help you calculate the holiday entitlements of your workers.

What holiday entitlement do my workers benefit from?

Your first point of reference is the contract you have with your worker as this should specify that holiday to which they are entitled (which is a legal requirement for employees) – this is known as their contractual holiday entitlement. Provided their contractual holiday entitlement is equal to, or more than, their statutory holiday entitlement this is their holiday entitlement. If their statutory holiday entitlement is greater than their contractual holiday entitlement, their statutory holiday entitlement prevails.

What is the statutory holiday entitlement?

Holiday entitlement under EU law and UK law is known as statutory holiday entitlement. The table below identifies these entitlements for a full time worker – a part-time workers’ holiday entitlement is calculated on a pro-rata basis.

Source entitlement comes from Amount of holiday entitled to
EU law (Working Time Directive) 4 weeks (20 days)
UK law (Working Time Regulations) 5.6 weeks (28 days) including the 4 weeks provided for by EU law *

*This includes the eight statutory bank holidays.

Will Brexit affect the application of EU Law?

Currently there is no affect and it is generally predicted that, once we exit, the status quo regarding much EU derived employment law will be maintained. This is with the exception of holiday entitlements, in particular, in relation to including overtime and other payments when calculating holiday pay (see below), and holiday rights for those on long-term sick leave. We will provide updates when there is further information about these possible changes.

Do I need to include overtime payments with holiday pay?

This is dependent on whether the worker has normal working hours. Again, the first point of reference is the contract as this should make reference to working hours and whether that worker has normal working hours – for example, 9am to 5pm Monday to Friday.

For those with normal working hours the table below summarises whether paid overtime should be taken into account in the holiday calculation in relation to statutory holiday entitlement – contractual holiday entitlement may be different.

Type of Overtime Description Include in holiday pay calculation?
Compulsory and guaranteed
  • Must be worked
  • Regularly required
YES for 5.6 weeks
Compulsory and non-guaranteed
  • Regularly required
  • Cannot be unreasonably refused
YES for 4 weeks
Voluntary
  • Regularly worked
PROBABLY YES – 4 weeks*
Voluntary
  • Occasional
  • Irregular
PROBABLY NO*

*In every case where overtime is voluntary, whether or not it should be included in the holiday pay calculation, will depend on all the circumstances as it is necessary for employers to consider whether the payments are related to the performance of the worker’s duties.  Legal advice should be sought on a case specific basis.

Those who do not work normal hours should be paid an average of their remuneration over the previous 12 weeks – this will include overtime (of any type) as well as commission, bonuses and other payments. This is with the exception for those who have zero-hours contracts – in this instance some weeks are disregarded when calculating their 12 week average pay.

Is it just overtime payments that need to be taken into account when calculating holiday pay for workers with normal working hours?

No, any payments that are related to the performance of a worker’s duties should be taken into account in relation to the 4 weeks’ holiday (that holiday entitlement derives from EU law – see above). Such payments might include:

  • bonuses based on performance;
  • commission;
  • call-out supplements; and
  • anti-social hours allowances.

Payments which do not usually need to be taken into account include:

  • benefits in kind;
  • bonuses not linked to workers’ performance; and
  • expenses (including travel expenses) which reimburse workers for costs incurred.

How do I calculate the overtime or other payment which I need to include in the holiday pay of workers with normal working hours?

One approach to calculating the holiday pay of a worker with normal working hours is taking the average remuneration received by the worker in the 12 weeks prior to their holiday, in the same way as you would for a worker who does not have normal working hours.

The difficulty associated with this approach is the impact annual performance related bonuses may have on the calculation. Unsurprisingly there is a raft of case law on this area of law and the correct approach for this calculation will be dependent on the circumstances of each case. It is therefore advisable to seek legal advice on a case specific basis.

Contact Details

If you would like more information on holiday entitlements and pay, please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Holiday Pay Must Include Commission

FG Solicitors - Holiday Pay CommissionSUMMARY: The Employment Tribunal has decided that, by adding a new provision, the Working Time Regulations 1998 (“WTR”) can be interpreted so that holiday pay must take into account commission.

Background

Mr Lock received a basic salary and was entitled to benefit under a commission scheme where payment was made for sales achieved.   Whilst on holiday, Mr Lock’s rate of pay was calculated with reference to his basic salary; he was also paid commission earned during previous weeks.  He was not however able to generate commission during his period of annual leave, so when he returned to work he received reduced remuneration. Mr Lock brought a claim for unlawful deduction of wages for unpaid holiday pay in the employment tribunal; he argued that holiday pay should be calculated to include all payments he would normally receive.  As the exclusion of commission from the holiday pay calculation appeared to be inconsistent with European law, the Employment Tribunal referred the matter to the Court of Justice of the European Union (“CJEU”).

Decision of the CJEU

For those of you who were keeping pace with the issue of what payments other than basic pay should be included in the calculation of holiday pay, you will remember that the CJEU concluded that Mr Lock’s commission payments must be taken into account when calculating holiday pay for the first 4 weeks of the 5.6 weeks statutory holiday period.

The following were key in relation to the CJEU coming to its decision: Mr Lock’s commission payments were directly and intrinsically linked to the performance of the tasks he was required to carry out; during annual leave Mr Lock could not generate any commission and, as a consequence, on his return would receive reduced remuneration; and the financial impact of this on a worker may deter them from taking their annual leave.

The CJEU referred the case back to the Employment Tribunal to consider how the decision sits alongside our domestic law.  Basically the tribunal would have to consider how holiday pay should be calculated.

Decision of the Employment Tribunal

The Employment Tribunal has concluded that the WTR can be interpreted so that commission must be included in holiday pay.  In order to arrive at this position the WTR should be read as if they contain a new Regulation 16(3)(e), which effectively confirms that, for the purposes of calculating holiday pay, a worker with normal working hours whose pay includes commission or similar payments shall be treated as having remuneration which varies with the amount of work done.

What Does this Mean for Employers?

In terms of calculating holiday pay, this means that a week’s pay for the purposes of calculating holiday pay will be calculated using the employee’s average remuneration to include commission payments over the 12 weeks before the calculation date. This calculation method will only apply in respect of the first four weeks’ leave not the whole of the 5.6 weeks maximum statutory holiday entitlement.

Any commission previously earned which falls due whilst the employee is on holiday will also need to be paid. 

Case

Mr S J Lock (and others) v British Gas and others ET case number 1900503/2012 & others 

Contact Details

For more details about this decision and what payments should be taken into account when calculating holiday pay please contact:

 fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.