Holiday Entitlement Above Statutory - Implied Contract?

[NHAccountant]

Hi,

I've become stuck in the middle of a disagreement between an employee in my team (I'm their line manager) and our HR department/director, regarding the employees holiday entitlement. They are a part-time employee, who has previously (for at least the past five and a half years) been granted annual leave above the prorated quantity of a full time employee. This was communicated to them by the HR department and my predecessor, and records show this has been the holiday granted/taken/paid. The standard/full-time working week is 37.5 hours (7.5hrs/day), full-time employees receive 33 days per year (25 + 8 bank holidays), equating to 247.5hrs.

The employee in question works 35 hours per week (early finish one day), the holiday entitlement granted to them has been 236.25hrs, whereas prorating the 33 days granted to full-timers would give them 231hrs (as they work just over 93% of a full time week).

I'm not privy to exactly what is stated in their written contract, but am I correct that because the above arrangement (extra hours) has been in place for at least six years this would "trump" what is in their written contract? HR (plus an external advisor) are saying the 231hours is legal, but don't seem to have considered any implied terms.

Thanks in advance...

 

[Newchodge]

Custom and practice amends a written contract, so, yes, generally if they have been told their holiday entitlement is the higher figure, they can claim that is their contractual entitlement. However if the contract states that the amount is pro rata and specifies the full time and part time hours correctly, then this is clearly an error and the employer is entitled to explain this has been a calculation error which is to be put right going forward. I would not accept they are entitled to recover the overpaid amount.

Has anyone explained how the error arose and when?

 

[Newchodge]

Hi,

I've become stuck in the middle of a disagreement between an employee in my team (I'm their line manager) and our HR department/director, regarding the employees holiday entitlement. They are a part-time employee, who has previously (for at least the past five and a half years) been granted annual leave above the prorated quantity of a full time employee. This was communicated to them by the HR department and my predecessor, and records show this has been the holiday granted/taken/paid. The standard/full-time working week is 37.5 hours (7.5hrs/day), full-time employees receive 33 days per year (25 + 8 bank holidays), equating to 247.5hrs.

The employee in question works 35 hours per week (early finish one day), the holiday entitlement granted to them has been 236.25hrs, whereas prorating the 33 days granted to full-timers would give them 231hrs (as they work just over 93% of a full time week).

I'm not privy to exactly what is stated in their written contract, but am I correct that because the above arrangement (extra hours) has been in place for at least six years this would "trump" what is in their written contract? HR (plus an external advisor) are saying the 231hours is legal, but don't seem to have considered any implied terms.

Thanks in advance...

33 multiplied by 7.5 hours - to get the number of hours holiday entitlement is 247.5
33 multiplied by 7 hours is 231 hours. However, the fact they work 4 days @ 7.5 hours and 1 day @ 5 hours may have made them calculate it differently. When they take a day off do they use 7 hours or the actual number of hours for the relevant day?

 

[NHAccountant]

Hi,

Thank you for the reply.

The calculation split the 33 days into 25 "general" days and 8 bank holidays. The 25 days were prorated to 23.5 days (25/37.5*35, rounded up) at 7.5hrs (176.25hrs), then 8 days for bank holidays were added on at 7.5hrs each (60hrs).

I don't know how their contract is worded, but if memory serve my own has something along the lines of "25 days plus bank/public holidays".

Thanks again.
Neil