An employee is supposed to work 40 hours/week but often does not turn up. On his leaving employment we need to pay him holiday pay. Do we calculate this on the basis of 40 hours/week or on 35, which is the average of what he actually worked in the last 12 weeks?
I have looked on the ACAS website which is generally helpful. There they make the distinction between a worker with "normal" working hours and those without. What is normal?
Tim
Tim Reed
Replies (2)
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Normal hours are what it says in the employment contract. Failing to turn up is a disciplinary issue that should be dealt with via the businesses disciplinary procedure.
However I feel you would be on very thin ice if you paid anything less than full pay as per contract for the holiday entitlement. Apparently recent cases have backed this up - where employees are on long term sick or off for other reasons. I haven't researched them in full though.
Your one other avenue is if there is regularity to the absences (for example always off on a Friday or Monday) - in which case you might be able to run with the concept that the contract has been altered by mutual consent and common practice. But you need to be able to prove that.
NeilW