Holiday Pay - Under the Working Time Regulations, a
worker is entitled to 4 weeks holiday per year. 4 weeks holiday
is pro-rata for part time workers. This means for example,
if a full time worker works 5 days a week, takes 4 weeks
holiday, he would be entitled to 20 days off. However, if
a part time worker only works 3 days per week and takes 4
weeks holiday, that would equate to 12 days off.
Under the Working Time Regulations, the holidays
can be inclusive of bank holidays which are 8 per year. Therefore
effectively, the employer would be entitled to days off on
bank holidays which is Christmas day etc and a further 12 days
off he was full time or indeed she was.
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Who is entitled to holiday pay?
In order to be entitled to holiday pay, one
must be a worker or an employee. One must not effectively be
then self-employed or genuinely self-employed. There have been
a lot of cases recently with regard to who is a worker and
who is a sub-contractor. A lot of sub-contractors who are under
a Contract for services, offer their labour to businesses over
a period of time and because they are not in business for themselves,
they fit the definition of worker under the Working Time Regulations.
These workers have not received holiday pay and they have been
making substantial claims for holiday pay within the construction
What is a holiday year?
Difficulties can occur in the calculation
of a holiday year. If there is no set holiday year within the
Contract of Employment i.e. from January to December which
is very common or the financial year from April to March of
the following year which again is fairly common, again it would
be imposed on the basis of the imposition of the Working Time
Regulations which was the 1st October 1998 so it would run
from October to the following October of each year.
If the employee leaves the employment not
having taken all his leave during that period, the calculation
becomes more difficult in the assessment of what he is entitled
to. He is entitled to paid leave on a pro-rata basis on the
calculation of 1.66 per calendar month if it is 20 days per
year. All figures need to be rounded up in order to make the
assessment. It is important to know also that the Working Time
Regulations only apply to the minimum holidays and they do
not apply to any greater number of holidays that are given
which are still subject to contractual terms by the employer.
For example, if an employer gives 20 days holiday per year
plus bank holidays, he is in fact giving an extra 8 days holiday
per year and those extra days are not subject to the Working
Time Regulations and are subject instead to the terms that
he imposes within the Contract of Employment.
In some circumstances, particularly when
you are dealing with workers, there has been arrangements that
the employee or worker, can through agreement, take holiday
pay as part of an hourly rate provided it is with a written
agreement between the parties. This is becoming again more
common within the building industry and other sub-contracting
Another interesting example of what used
to happen in relation to dismissal for gross misconduct was
that when holidays were purely contractual, many employers
would have a clause in their Contract saying that if anyone
was dismissed for gross misconduct, they would lose any accrued
holidays. Under the Working Time Regulations, employers can
no longer do this and even if someone is dismissed for dishonesty
for example, they would still have to pay for any accrued holiday
up to an including these amounts for Working Time Regulations
Holidays obviously any additional holidays can still have a
separate clause within the Contract of Employment to exclude
them for it.
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