I have a slightly complicated problem, so hope you can bear with me.....an employee of one of my client's has changed her contract during the leave year which runs from 1st September to 31st August. So, from 1st September 10 to 30th November 10 she worked full time 5 days a week and then changed her contract so that from 1st December 10 to 31st August 11 she worked only two days a week.
I have worked out that she was entitled to 7 days holiday during the 3 months she was working full time and from 1st December to 31st August she is entitled to 8.4 days - 2 x 5.6 = 11.2 for 12 months - 11.2/12 = .933 x 9 = 8.4 (rounded up). Could someone confirm that this is correct?
As her previous contract came to an end, would it be equivalent to ending employment and then restarting? Think what I'm trying to ask is when her contract ended could she be paid the remaining holiday pay that she would have been entitled to if her contract had continued? (i.e. 21 days). She is now pregnant and is having a really rough time of it with sickness and has been told by my client that she is not entitled to SMP, which she would have been if she hadn't been off sick and not been paid for those days. She's not a happy bunny!
The employee doesn't get paid for days off sick so it's consequently reduced her monthly wage for July and it's her average weekly wage for July and August that are taken into account when calculating her entitlement to SMP. She must have earned at least £102 per week to qualify.
Lol....no problem. Yes, unfortunately she doesn't get paid when she's off sick....poor girl's been in hospital on a drip...almost as if she's allergic to being pregnant!
I'd tend to agree with you about holiday pay being due at the end of a contract but to be sure I have always found ACAS eager to help and expert in this field.
(I'm a bit between phone calls) the first 3 month period is one quarter of a year. Therefore entitlement 5.6 / 4 = 1.4 * 5days = 7 agreed the second contract happily is a round 9 months therefore a simple entitlement is 5.6 / 4 * 3 * 2days = 8.4
sorry edited
I suppose the question is whether the contract changed or ended. If it was changed by mutual agreement then the holiday pay due is a simple average of the previous 12 weeks pay.
Tim
-- Edited by Don Tax on Tuesday 9th of August 2011 12:31:30 PM
-- Edited by Don Tax on Tuesday 9th of August 2011 12:34:56 PM
Many thanks for your reply Don. I'm glad I've worked it out correctly I will check out the link you provided and ask the client whether the contract effectively ended or changed by agreement between the two parties.
Sorry to be a bit thick, but when you say the holiday pay due will be a simple average of the previous 12 weeks pay, what do you mean exactly?
Just if the contract has been changed and it is a continuous employment then the normal rules are that statutory holiday pay is based on an average of the previous 12 weeks pay. Therefore her monetary entitlement will be less than when she was working a 5 day week - 8.4 days (less any already taken).
If she was on £50 per day then £50 x 2 = £100 x 4.2 weeks.
NB I haven't addressed the sickness aspect or whether she is below the threshold for entitlement, but hope i've helped you move on the problem a bit.
The employee doesn't get paid for days off sick so it's consequently reduced her monthly wage for July and it's her average weekly wage for July and August that are taken into account when calculating her entitlement to SMP. She must have earned at least £102 per week to qualify.
Pauline
My turn to sound fick now :o). Why doesn't the employee get paid for days off sick ?
Thank you for helping me on this. She's never been paid when she's been off sick. My client has always told me to deduct any days sickness from her wages at the same hourly rate that she works....so if she's off a day sick for 8 hours at £6.75 per hour she has £54 deducted from her wages. She showed me her contract and employee handbook and although it says that there is no contractual sick pay (other than statutory) it doesn't say anywhere that she doesn't get paid for being off sick, but she never has.
I'm not a lawyer but I don't think any clause can over-ride Statutory Pay, Maternity, SSP, Parenting etc. Depending on the amount of employer NIC in each month, there's a chance he'll get a good proportion of it back anyway. She should consider taking action to enforce her rights if there is no other reason why she was denied SSP. Also if there were frequent absences and she has evidence of illness, then the Periods of Incapacity for Work maybe linked, thus no waiting days.
The employer is a woman, so I would have thought she would have been a little more sympathetic (and she's had children herself). I was wondering if the PIW would be linked....I'll double check on Friday when I'm in. It's a shame as she's such a nice girl and doesn't really deserve to be treated the way she is. If she tries to argue with the employer she gets shot down in flames. She has considered taking it further but doesn't know if she can take the stress, given she's not been well with the pregnancy.
If you are unsure about anything relating to sick pay, talk to your employer first.
If you are having problems getting your sick pay:
check your contract to find out how much you should get
ask your employer if there's been a problem paying your sick pay
find out your rights for Statutory Sick Pay
If you disagree with a decision on company sick pay, try to resolve the problem with your employer. If your employer is refusing to pay you sick pay you are due, this is classed as an 'unlawful deduction from wages'. You might be able to make a claim to an Employment Tribunal.
Almost sounds like the employer is trying to use a contractual agreement to get out of statutory payments. Which again is an offence. An employee on a fixed contract has the same rights as a normal employee
As you've said, she's above the LEL for SSP, so its just checking if there is linked PIW. I think it is an SSP1 must be issued if the employer is refusing to pay.
The only other reason I can think of for refusing is if she is far along with the Maternity pay period.
The issue isn't really with SSP.....the employee has only been off say a couple of days in May, couple in June and one day in July. I do need to look into the fact that these periods may be linked and she should have had SSP for possibly the day in July. They are linked if there is less than 8 weeks between them I think? The issue was the fact that she had been sick one day in July which had reduced her average weekly wage to below the LEL so the employer said she wasn't entitled to SMP (the employee hasn't even given her form MATB1 yet).
To complicate matters, her days sick in May and June had not been deducted from her pay in those months so I was told to deduct them from her pay in July which made her monthly pay a lot less than normal. To be honest I think she should have been paid SSP for the one day she was sick in July, but as I said I need to double check this on Friday. To be honest it's a little bit of a mess!
Just been reading up on sick pay.....she won't be entitled to sick pay anyway as to form a PIW you have to have been sick for four or more days in a row and she's only had the odd day or two off in the last three months.
It is against the law to deduct pay if you are off sick, if you are entitled to SSP.
.................
Almost sounds like the employer is trying to use a contractual agreement to get out of statutory payments. Which again is an offence. An employee on a fixed contract has the same rights as a normal employee
Bill
I'm thinking it is not against the law to pay her an hourly rate, according to the work done. ie. waiting days will inevitably reduce her average pay (which may bring her below the LEL) or will reduce her average for holiday pay purposes.
I wish her the best of luck when it comes to getting SMP! What sort of software are you using, pauline?
Tim
-- Edited by Don Tax on Tuesday 9th of August 2011 06:25:03 PM
