Holidays for part-time staff

Phobious

Hey Guys,

So my GF worked 1100 hours last year and from what we understand she is entitled to 8% of those hours back as holidays this year, is this right?

Kind regards,
Phobious

Corruptedmorals

Yes. However she might run into difficulties if trying to use 2011 holidays, plenty of businesses like retail etc. do not allow holidays to be carried over (but the monetary value of what she would have been paid in lieu of them often can be). It will specify this in the contract/handbook whether they can be carried or not.

But no such issue would exist if she still works there, for her 2012 holidays.

Phobious

She has been working at this business for 4 years and only gotten 1 week off for each year, can she get this time back?

tatli_lokma

Phobious wrote: »

She has been working at this business for 4 years and only gotten 1 week off for each year, can she get this time back?

If the employer does not voluntarily allow her the legal time off then I doubt they will be willing to suddenly offer her up to 3 months paid holidays. If she is part time, then you need to know exactly how many hours she worked, calculate 8% of this and work from there. As I said the employer is probably not going to give her months off in paid back holidays. However perhaps broach the subject with them, and if you can't come to any agreement, make a claim under the working time act.

Citizens information or NERA will be able to advise the best way to go about this.

best of luck

Nody

Phobious wrote: »

She has been working at this business for 4 years and only gotten 1 week off for each year, can she get this time back?

And are you sure she's not been paid for the rest?

Wishbone Ash

Little Ted wrote: »

If the employer does not voluntarily allow her the legal time off then I doubt they will be willing to suddenly offer her up to 3 months paid holidays

Although legally, the onus is on the employer to ensure that employees take their annual leave entitlements - not the other way around.

tatli_lokma

Wishbone Ash wrote: »

Although legally, the onus is on the employer to ensure that employees take their annual leave entitlements - not the other way around.

Absolutely, but my point is that if an employer is knowingly flouting the rules, they are not likely to then say 'oops my bad' and just willingly allow months of paid time off.
It could even be (if it is a small business for example) that they don't realise they have to give time off. The amount of small employers who think part timers don't get paid hols is surprisingly high. And the amount of people who think that if you don't take your hols you loose them is staggering. They might just be totally ignorant of their responsibilities.

If they are willingly ignoring the rules, then you need to approach it from a different angle...i.e know exactly what you would have been entitled to, be certain you did not get any payout in place of said time, and finally if no agreement can be made, make a claim.

Wishbone Ash

Little Ted wrote: »

It could even be (if it is a small business for example) that they don't realise they have to give time off

Indeed. And a lot of co-workers of part time employees complain when they do get holidays - "sure they're hardly ever here".

Little Ted wrote:

And the amount of people who think that if you don't take your hols you loose them is staggering

You lose them with my employer (the HSE). If you do not avail of the opportunity to take your AL, it may not be carried forward (except in very exceptional circumstances).

Eoin

Wishbone Ash wrote: »

You lose them with my employer (the HSE). If you do not avail of the opportunity to take your AL, it may not be carried forward (except in very exceptional circumstances).

Same here (private company) - unless for business reasons you've not been able to take them off. We have to try and keep on top of it, and tell people that they need to use their leave before the end of the leave calendar year, but it's ultimately up to them.

tatli_lokma

Eoin wrote: »

Same here (private company) - unless for business reasons you've not been able to take them off. We have to try and keep on top of it, and tell people that they need to use their leave before the end of the leave calendar year, but it's ultimately up to them.

As far as I know that is illegal - you are entitled to take your time off. It is the employers responsibility to ensure this happens. If at the end of the year you have not monitored it and Joe Schmoe has 4 weeks left, then you must either allow him to carry it over or pay him out.

citizens information wrote:

In addition, annual leave should be taken within the appropriate leave year or with your consent, within 6 months of the relevant leave year. Further holding over (also known as carrying-over) of annual leave at your wish is a matter for agreement between you and your employer

working time act wrote:

(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.

I have always been advised by our legal advisors that, bottom line, you have to give AL, you can't 'loose' it or you cannot 'forfeit' it. If the employee does not look for time off, it is the employers responsibility to ensure that they take the leave in the given year (in other words tell them to take a holiday), otherwise they have to come to an agreement with the employee which is favourable to them - i.e the agreement must be equal or better than the leave. So for example allow the leave to carry over or pay the employee for the leave accrued.
This is always how I have understood it. Plenty of threads on here about it too.

Eoin

Little Ted wrote: »

As far as I know that is illegal - you are entitled to take your time off. It is the employers responsibility to ensure this happens. If at the end of the year you have not monitored it and Joe Schmoe has 4 weeks left, then you must either allow him to carry it over or pay him out.

My employer is very by the book. I doubt they'd implement this policy if it wasn't legal.

Reminders will be sent to use our leave, if we do not use up our entitlement (and are not stopped for business reasons), it's not carried over. There's only so much a manager can do until it's a case of telling someone not to come in until their leave is used up.

Wishbone Ash

Little Ted wrote: »

If at the end of the year you have not monitored it and Joe Schmoe has 4 weeks left, then you must either allow him to carry it over or pay him out

The problem in my area is that Joe Schmoe has been told upteen times during the year to take leave but is sloppy about doing it. We even break the year into 4 segments and try to encourage staff to take at least 25% of their leave per segment. Despit this, we still get the Joe Schmoes coming along at the end of March stating that they still have a week left and whinging when they have to forfeit it.

tatli_lokma

I really think there is a mistake here - I was of the same opinion as you, and have seen many contracts come across my desk for various new starters and outsourced companies. I recently was involved with a discussion on boards where it was pointed out that my take on it was incorrect. Since then I have looked into this quite a lot, and spoken to an employment law solicitor and various business associations. They have all told me that you cannot blanket statment force employees to forfeit leave. The legal statutory entitlement is a minimum of 4 weeks leave or 8% of the hours worked - whichever is the greater. You cannot give an employee less than this. From any experience I have had with this, the matter is cut and dried. If a member of staff takes less than 4 weeks then you must literally take matters into your own hands and make them take leave. Your alternative is to allow it be carried over. you cannot just cancel it, and say well you didn't take it by 31st Dec, so tough, its gone. AS a result of my checking we have had to re-instate several staff members unused leave. However, their managers literally imposed dates on them to take the leave so as to avoid the same thing happening again.

If it is really impossible for a company to allow staff to carry over leave into the next year, then as an employer you are required by law to manage time off adequately so that each employee gets their statutory minimum entitlement.

However if your company gives more than 4 weeks, then I assume you could probably forfeit the additional leave if you don't take it, but legally I don't think you would have a leg to stand on under the Organisation of Working time act if you were brought to court by an employee because they did not take their 4 weeks and lost the untaken leave. I'm not sure about this, as there is only 21 days leave granted in our company.

In fact, having double checked, it appears you cannot even pay out the leave unless a staff member is leaving

It is illegal under the Organisation of Working Time Act, 1997 for an employer to pay an allowance in lieu of the minimum statutory holiday entitlement of an employee unless the employment relationship is terminated. In general, your annual leave is calculated on the basis of hours worked.

According to the HSE Terms and Conditions of Employment, it is your managers responsibility to ensure your leave is taken within the accrual year, and if this can't be done you can carry your leave over. Nothing about forfeiting it (cos that would be illegal!)
taken from here: http://www.hse.ie/eng/staff/Resources/Terms_Conditions_of_Employment/Terms_and_Conditions_of_Employment_May_2009_.pdf

Timing of Annual Leave
The onus is on the employer to ensure that employees can avail of their annual leave entitlement in the leave year to which it relates. In exceptional circumstances due to service requirements, annual leave may be carried forward into the first six months of the next annual leave year, provided the employee agrees to defer his/her leave.
It is good practice for line managers to regularly review employees’ annual leave records and make every effort to ensure that employees can avail of their outstanding leave in the current leave year. Where an employee cannot take his/her outstanding leave due to service requirements or other exceptional circumstances, s/he may carry this leave forward into the first six months of the following leave year.
The time at which annual leave is taken is at the discretion of the employer, having regard to service requirements and subject to the employee’s needs to reconcile work and family responsibilities, and his/her opportunities for rest and recreation.

tatli_lokma

Wishbone Ash wrote: »

We even break the year into 4 segments and try to encourage staff to take at least 25% of their leave per segment. Despit this, we still get the Joe Schmoes coming along at the end of March stating that they still have a week left and whinging when they have to forfeit it.

you can't do that either - once a member of staff has worked 8 mths, they are entitled to 2 weeks unbroken leave. So if its 4 weeks leave and you are trying to get people to take 1 week per quarter, that is not allowed unless the staff member agrees to it and it suits them. If they want to take 2 weeks in the third quarter then you can't really refuse unless the business needs them and can't do without them. The best you can do is work around them. If it gets to the 4th quarter and they have 2 weeks leave left, but sorry you can't enforce that it is forfeited. You have to allow it be carried over and learn the lesson to impose leave on those staff members who don't plan leave correctly.

Eoin

I'm sure there's an argument that they have given you your entitlement, and they have given you every opportunity to take the leave. You can't expect someone to be able to accumulate more and more annual leave every year.

As I said, my company is very by the book and errs on the side of caution when it comes to employment issues. They would not implement this policy unless it was above board.

tatli_lokma

Eoin wrote: »

I'm sure there's an argument that they have given you your entitlement, and they have given you every opportunity to take the leave. You can't expect someone to be able to accumulate more and more annual leave every year.

As I said, my company is very by the book and errs on the side of caution when it comes to employment issues. They would not implement this policy unless it was above board. .

Sorry but I really think you are incorrect on this. I would be very confident in this fact actually.

The point is you are not expected to accumulate it, and its not a case of giving someone an opportunity to take leave and they refuse. As an employer you can enforce leave. You have the authority to do this, you have the control to prescribe when leave is taken (although you are expected to take factors such as family and personal circumstances into account and be reasonable). If you need to enfore leave, then you just need to do it. The onus is on the employer. It is all to do with the Organisation of working time act. If an employee were to take your employer to task on this, legally they would not have a leg to stand on. As an employer you can;t be saying 'please take your leave' and the employee refuses and accumulates leave. If you don't want leave accumulated then you must enforce leave. It really is that simple. The onus is totally on the employer. You won't get away with telling the Employment Rights Commissioner that 'well I tried to ask them to take hols but they wouldn't'. The employer is in charge on this one.

I recently attended an employment law seminar and the point could not be stressed enough - YOU the EMPLOYER must ensure leave is taken. If it is not, then you can't cause the employee to forfeit it. If you do not want to allow leave to carry over YOU the EMPOYER must ensure in that case the the employee takes their leave entitlement prior to the end of the leave year.
The matter had lots of discussion and lots of people made what if situations. All the legal advisors and HR advisors could not stress enough that if you simply remove the entitlement of staff you are at fault. The law is 4 weeks statutory leave - this can't be taken away. End of. It is statutory, the only thing it is reliant upon is you working the prescribed amount of hours in a year. If you work the prescribed amount of hours it is your legal right to have 4 weeks holiday (or 8% of your worked hours)and this cannot be taken away from you.

mikemac1

In financial services they force you to take two consecutive weeks

It's so you are out of the office long enough for your fiddling and cooking the books to get discovered :pac:

Wishbone Ash

Little Ted wrote: »

The legal statutory entitlement is a minimum of 4 weeks leave or 8% of the hours worked - whichever is the greater

Our staff's entitlement vary between 4 weeks and 8 weeks..

If a member of staff takes less than 4 weeks then you must literally take matters into your own hands and make them take leave.

Some staff who have been assigned leave do not take it. It's generally a problem with single annual leave days. For example, an employee who has been assigned a day which falls on a public holiday may turn up for duty to avoid loss of premium payment. Some staff chose to forfeit annual leave to prevent earning a "flat week" wages.

According to the HSE Terms and Conditions of Employment, it is your managers responsibility to ensure your leave is taken within the accrual year, and if this can't be done you can carry your leave over. Nothing about forfeiting it (cos that would be illegal!)
taken from here: http://www.hse.ie/eng/staff/Resources/Terms_Conditions_of_Employment/Terms_and_Conditions_of_Employment_May_2009_.pdf

In my 24 years there I'm not aware of anyone formally objecting to it. With 600 staff working 24/7 in essential services, annual leave management is critical and means that at all times, every day of the year, a certain portion of staff need to be on leave. In the current climate of staff shortages, when someone doesn't take leave which has been assigned it may not be immediately noticeable when ther is no replacement of sick leave, materenity leave, parental leave etc.

To carry it forward into the next year would only exacerabate the problem.

Little Ted wrote: »

you can't do that either - once a member of staff has worked 8 mths, they are entitled to 2 weeks unbroken leave

Some of our staff are entitled to 8 weeks - their leave is the most difficult to manage. They aren't impressed when requested to take 2 weeks in the middle of a wet Janurary.

Eoin wrote: »

You can't expect someone to be able to accumulate more and more annual leave every year

+1

Eoin

Little Ted wrote: »

Sorry but I really think you are incorrect on this. I would be very confident in this fact actually.

I am just telling you what our HR policies are, written by people who are subject matter experts and get regular advice from the appropriate bodies. Maybe they can be taken to task on it, but it's either not happened so far, or the policy is correct.

The HSE PDF you have linked to actually says the following (unless I missed another quote that you're referring to?):

Timing of Annual Leave
The onus is on the employer to ensure that employees can avail of their annual leave entitlement in the leave year to which it relates. In exceptional circumstances due to service requirements, annual leave may be carried forward into the first six months of the next annual leave year, provided the employee agrees to defer his/her leave

This does not mean the manager has to ensure the employee takes their leave. It means they have to make sure the employee has the opportunity to do so.

tatli_lokma

Eoin wrote: »

This does not mean the manager has to ensure the employee takes their leave. It means they have to make sure the employee has the opportunity to do so.

I disagree - by my interpretation this means that the onus (as I understand it to mean responsibility, culpability, obligation) is on the employer to ensure (as I understand it to mean make certain or sure) that employees get to take their leave within the given annual leave year. The only time this doesn't apply is if with the permission of the staff member you allow it be carried over.

If you do a google search you can see that this very ruling has caused difficulties in the HSE in particular as this was not previously the case. There ar a number of articles of local health boards discussing the matter and ultimately being required to amend practices.

From the legal advice guidelines I have, which are issued jointly by the SFA and NERA:

What happens when annual leave is not taken?
The employer must ensure that the employee takes his/her full statutory leave allocation within the appropriate period. If the emplpoyer fails to ensure that an employee receives his/her annual leave wihin the appropriate time, the employer:

• commits an offence under the Acts;
• must pay the employee an amount equivalent to the holiday pay s/he would have received if s/he had been allowed to take leave in the normal leave.

Eoin wrote: »

I am just telling you what our HR policies are, written by people who are subject matter experts and get regular advice from the appropriate bodies. Maybe they can be taken to task on it, but it's either not happened so far, or the policy is correct.

And I am equally telling you that we also received guidance from experts and appropriate bodies. In fact I personally got this advice directly. You are assuming that your HR team are experts and have also sought this advice. But it is just an assumption. From my experience, many HR 'experts' have left companies in hot water because of their lack of correct knowledge. But at the end of the day if you have total faith that your HR team are 100% correct and there is no possibility that they have it wrong, well who am I to argue it further with you?

I know that in certain jobs the staff overlook this and without complaint are willing to forfeit leave. As I said, forfeiting leave over and above the statutory requirements is probably a different thing, but the stat req of 4 weeks cannot be ignored. Any employer who does, does so at their own peril. If you don't believe me check out NERA or read the Organisation of Working Time Act.

tatli_lokma

Wishbone Ash wrote: »

Some staff who have been assigned leave do not take it. It's generally a problem with single annual leave days. For example, an employee who has been assigned a day which falls on a public holiday may turn up for duty to avoid loss of premium payment. Some staff chose to forfeit annual leave to prevent earning a "flat week" wages.

public holidays are a different matter again to annual leave. You can't assign an annual leave day as a public holiday. They are treated seperately. If you could then the stat minimum wouldn't be 20 days it would only be 9 plus public holidays. I think the situation you have outlined just confirms why so many people have a negative opinion of public sector workers. Turning up for duty because you want extra cash is ludicrious, that management allow it to happen is worse. It shouldn't be up to the employees to call the shots as to when they work.

Wishbone Ash wrote: »

In my 24 years there I'm not aware of anyone formally objecting to it.

more likely is that everyone is getting their statutory leave, and just missing out on the additional leave they have been granted.

Wishbone Ash wrote: »

Eoin wrote:

To carry it forward into the next year would only exacerabate the problem.

Some of our staff are entitled to 8 weeks - their leave is the most difficult to manage. They aren't impressed when requested to take 2 weeks in the middle of a wet Janurary.

+1

tough - not impressed or not, it is the employer responsibility to 'man up' and handle such situations. However when 8 weeks leave is not able to be taken, as long as the 4 weeks is granted then the law has not been broken.

Bear in mind also folks, that if an employer were not managing leave correctly and staff were not getting their stat requirement, then in a case of workplace stress the employer would be culpable as they would be seen to contribute to such a situation by not allowing correct leave. Its as much a health and safety issue as it is a HR issue.

Eoin

Little Ted wrote: »

And I am equally telling you that we also received guidance from experts and appropriate bodies. In fact I personally got this advice directly. You are assuming that your HR team are experts and have also sought this advice. But it is just an assumption. From my experience, many HR 'experts' have left companies in hot water because of their lack of correct knowledge. But at the end of the day if you have total faith that your HR team are 100% correct and there is no possibility that they have it wrong, well who am I to argue it further with you?

I've as much faith in them as some randomer on the internet, so I'm going to leave it at that.

tatli_lokma

Eoin wrote: »

I've as much faith in them as some randomer on the internet, so I'm going to leave it at that.

Nice :rolleyes:

I'm not asking you to believe me just cos I say so. The evidence is there if you wish to seek it out. I can back up what I am saying by facts and a basic internet search of the relevant documents can confirm my assertations. You however are only 'assuming' that what you are told by HR is correct. In fairness, as a mod I think your attitude is a bit remiss. I am only trying to give correct advice and I am able to back it up with documentation. You on the other hand are advising people incorrectly without any real reason for your assertations other than your HR does it so it must be right. I find that a little worrying.

Eoin

My role here as mod is not to advise people on employment issues, it's just to act as a caretaker for the forum.

I've not seen any concrete facts that disprove anything, rather differences on how the wording is interpreted and differences on the advice that we have received from different people. And I'm not particularly pushed about it to continue going in circles.

Phobious

My friend in question has now been fired, but apparently its for different reasons :P

They have contacted a government body to make a claim.

Thanks for all the help guys you've been a great help