Holiday Entitlement

I work ad hoc hours.  My contract states a minimum of 19hrs per month but on average it is around 45 to 50 hrs per month.  Currently I get my hours worked then an additional 12.07% for holiday pay (shown separately on payslip).  When I take leave the manager doesn't put me on the rota but it is marked as AL. 

I am therefore wondering what happens during sick leave when I will only get SSP.  Obviously normal employees are still accuring holiday and can therefore claim holiday pay instead if they wish. 

But I can't do that and may have 6 months off sick, or would I be entitled to 12.07% of 19hrs each month. 

  • Hi 

    It's Megan here from Macmillan's Online Community team. Thank you for posting your question, our Work Support Advisers are aware of your post and will reply as soon as they can. 

    If you need any support using the Community or need some help finding some additional support, please don't hesitate to email community@macmillan.org.uk. Alternatively you can also contact the specialist teams on the Macmillan Support Line who are on hand to provide emotional, practical and financial support, every day from 8am-8pm. You can get in touch by calling 0808 808 00 00, by email or by using webchat during the opening hours.

    Best wishes

    Megan
    Macmillan's Online Community team

  • Hi ,

    Thank you for contacting us here at Macmillan Cancer Support. My name is Emma and I’m a Work Support Advisor here on the national Macmillan Support Line. I apologise for the length of time it has taken for me to respond, however I wanted to seek some additional advice to ensure I gave you as complete answer as I can. Your question around accruing holidays, part time working, and sick pay is quite a tricky one to answer as I’m afraid this is a complex, changing area of law. There are many variants involved and so you may wish to contact us on the Work Support team directly so we can clarify information with you. If you do wish to speak to us, our number is 0808 808 0000 option 1, then 2, then 3. We are available from 8am to 6pm Monday to Friday.

    From your query I am assuming that you live in either England or Wales. There sometimes can be slight differences with Scottish and Northern Irish law and so if my assumption is incorrect, please do let me know. From the information you have provided I have also assumed you are only entitled to Statutory Annual Leave of 5.6 weeks a year, which is the legal minimum, and do not have any additional Occupational or Contractual Annual Leave. The Working Time Regulations 1998 (WTR 1998) are the legislation which specify the rules around Statutory Annual Leave and under that legislation there are still some areas which are still disputed. This means that often case law will fill the gaps from Employment Tribunals, Employment Appeal Tribunals and so on.

    I am not clear from the information you have given what type of employment contract you are working under. I am assuming that you are a casual or zero hours worker (rather than an employee) for the purposes of answering this question, although employment status as an employee or worker doesn't affect the entitlement to holiday and holiday pay. Your question mentioned "Currently I get my hours worked then an additional 12.07% for holiday pay”. This seems to indicate you are receiving rolled up holiday pay, where 12.07% pay is added to your regular pay rather than being paid for annual leave when you book it. The courts have ruled that being paid in this way is unlawful as it defeats the objective of the Working Time Regulations 1998 and could deter workers from taking their holiday. However, if you are a zero hours worker working on a series of short-term assignments, I can understand your employer may not want you to take holiday during such time. If this is the case, your employer can legally pay you in lieu of accrued but untaken holiday at the end of each assignment, as is required by regulation 14 of the WTR 1998.

    You also mentioned in your query "I am therefore wondering what happens during sick leave when I will only get SSP. Obviously normal employees are still accruing holiday and can therefore claim holiday pay instead if they wish. But I can't do that and may have 6 months off sick, or would I be entitled to 12.07% of 19hrs each month."

    From your query, I am not clear why you think you would not continue to accrue holiday during a period of sick leave as most workers are entitled to 5.6 weeks' leave under the WTR 1998 and to a week's pay for each week of holiday. Casual workers would continue to accrue holiday during a period of sick leave as would zero hours workers working under an Umbrella contract. If you are a zero hours worker, there may be an argument that you are working on individual assignments and therefore not accruing holiday between assignments.

    Assuming you are entitled to accrue holiday during sick leave, the calculation of holiday pay (which is separate to the calculation of holiday entitlement) is equally complicated. For casual workers who do not have normal working hours, holiday pay is calculated by reference to average remuneration over the previous 52 weeks (or the number of complete weeks you’ve been employed if that’s less than 52 weeks). You may also wish to refer to the government guidance How to calculate holiday entitlement for workers on different types of contract.  It’s also important to note that the week's pay provisions of the Employment Rights Act 1996 require all amounts you earn to be taken into account in this calculation if you are a worker without normal working hours, so this would include overtime, commission and allowances.

    As I said initially, this is a complex area of law and so if any of the information I’ve provided to you is unclear, or any of the assumptions I have made are incorrect, then please do feel free to contact us again. You can either respond to this message, or if you find it easier contact us direct on the Macmillan Support Line. You can call us on 0808 808 0000 option 1, then 2, then 3 between 8am and 6pm Monday to Friday, you can chat with us online during those hours, or email us anytime directly.

     

    Kind regards,

    Emma
    Work Support Advisor
    Remember you can also speak with the Macmillan Support Line team of experts. Phone free on 0808 808 0000 (7 days a week, 8am-8pm) or by email