Posted: Tue May 02, 2006 2:45 pm Post subject: Holiday pay for term time workers
Hi
I am looking for some help on this as i can find no information. I have staff whom only work 41 weeks a year. Do i pay 4 weeks holiday or is it different as they do not work the full 52 weeks.
Hope some one can help.
Thanks
I hope I can help you more, and hopefully some visitors will also try to help. Can you clarify please
- do you pay your staff throughout the year, like teachers, or just for their work during term time?
- do the same staff work for you every term, i.e. is there continuity in their employment even though they are not working during the school holidays? Do you have staff who have worked for you continuously under this arrangement over a number of years, or who could do so? _________________ Ian Congreave, PayPerShop owner
Posted: Wed May 03, 2006 2:15 pm Post subject: Holiday pay for term time workers
I think you are asking three separate, albeit related, questions:
Q1. What is the entitlement to paid holiday for TTO (term-time only)employees?
Q2. What payment should I make for holidays?
Q3. When should I make payment for holidays?
A1. The entitlement to paid holiday for each employee should be clearly stated in his/her contract. However, the contracts at many schools and colleges only refer to an additional document (e.g. a Staff Handbook) - which typically shows the rules for calculating entitlement to paid holiday, depending on:
* the individual's LoS (length of continuous service) at the start of each holiday year (which may be different for Academic and Support staff);
* the individual's Grade (or more specifically the Grade of the Post to which the individual is contracted - unless the individual is on a protected Grade);
* occasionally there are additional rules, such as only counting whole calendar months when determining LoS.
This leaves two further complications - an individual with more than one contract (or whose contract changes during the year), and an individual working for less than the FTE (full-time equivalent).
In theory the first issue is accommodated by pro-rating the entitlement under each contract and then summing these to arrive at a single value (usually rounded to whole days) for that individual in a specific holiday year.
The second issue is the heart of the question that you raised. Unless specified otherwise, the entitlement rules will be assumed to apply to a contract with an FTE of '1.00'. So, if your employee is working in a Post that would be for 52.143 weeks/p.a. if it weren't TTO, then the employee is only contracted for 41/52.143 (or 0.8055) of an FTE - and this should be used as a multiplier to arrive at their entitlement to paid holiday days!
So, a TTO member of staff is NOT entitled to the same amount of paid holiday as a full-time member of staff doing a similar job and with the same LoS.
A2. The amount of payment to be made will depend on your rules for determining a day's pay - which is a whole different issue!
A3.
Staff who receive pay spread evenly throughout the year (e.g. monthly) will automatically be receiving holiday pay as part of their normal pay - so long as they take their full entitlement to paid holiday (i.e. without deductions for the holiday) during the year. [Note: under the WTR, you should not be allowing them to receive additional pay in lieu of untaken holiday - unless either this arises because they cease employment before the end of the holiday year, or they have already taken the statutory minimum amount of paid holiday].
However staff who are only paid for months they work - e.g. only paid in term-time (or the previous month if paid in arrears) - are in the category covered by the recent EC ruling regarding 'rolled-up holiday pay'. The impact of this has not yet been consolidated into a set of practical rules. It would appear that the practice of paying (and showing) the holiday pay, as a separate item, at the SAME time as the pay for work done is no longer acceptable. The inference is that you will need to accrue holiday entitlement and only make payments (out of this accrued entitlement) when the individual actually takes their holidays! Frankly this seems neither practical for the employer nor helpful to the employee, but I await any clarification on practical rules in this area.
All the above is only my opinion, although based on experience at a large number of colleges. If anyone knows better, I would be pleased to hear.
Posted: Thu May 04, 2006 8:14 am Post subject: Holiday pay for term-time workers
Thank you Hugo for contributing your experience and time to this very difficult employment area.
I am going to tackle the subject in terms of principles, because I think that is what the Working Time Regulations (WTR) is all about. I don't think that the legislation itself is complex - it is defined in a relatively few paragraphs in the regulations. The complexity arises because employment arrangements differ so widely - the complexity is in the application of the regulations.
Therefore, the principles are important - what are the Regulations - and the original European Directive - trying to achieve? That was the basis on which the recent decision on rolled-up holiday pay was decided. I don't think the courts had a problem with the concept of rolled-up holiday pay - the problem was that it did not achieve the objective of the Directive, i.e. to give people their holiday pay when they actually go on holiday.
The WTR treats holidays as two components - time and money. Although they have to come together when the holiday is taken, they are determined separately.
First, time. The entitlement is to four weeks - the actual time depends of course on each worker's hours or days of work. Employers may choose how to calculate entitlement - an accrual system can be used for example - but the result must not be less than the statutory minimum. The WTR simply requires the period of leave to be proportionate to the length of service in the employee's holiday year. ("holiday year" is another subject - but not for discussion now)
How do we apply that to term time working? Your employees work 41 weeks out of 52 but, due to the employment law continuity rules, they are employed under their contracts, assuming they continue to work from one year into the next, for 52 weeks in a year. They are therefore entitled to four weeks holiday. I presume they also work 5 days each week, so those four weeks are, in practice, 20 days.
When should they take the 20 days? As they are not working for 11 weeks in the year, they can be taken during those 11 weeks. You could ask them to tell you which of the 11 weeks will be the 4 weeks holiday for which they are entitled to be paid (best way) or you could decide that for yourself. They could, for example, have 1 week at Easter, 2 weeks during the summer, and 1 week at Christmas.
The second issue is pay. For each week of holiday you have to pay a "week's pay". I have suggested that the WTR in itself is not complex - in contrast, the "week's pay" rules in the Employment Rights Act is highly complex and, in many working arrangements, virtually impossible to apply. Again, the principle behind the rules is important. The rules are intended to ensure that, when workers are absent for a week, the amount paid is the equivalent (on average, if necessary) of what they would have received if they had been working (other than overtime).
I suspect that your employees' pay is consistent each week if overtime is ignored. If that is the case, it is probably their regular contractual pay that you should pay for each week. The important thing is to ensure that they receive what they would receive if they were at work and working a normal week.
I think I might have digressed into aspects of holiday leave and pay that you were not asking about, but I hope the above helps. Please come back and ask further questions if you need to!! _________________ Ian Congreave, PayPerShop owner
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