Working Time Regulations
can utilise. Holiday pay is to be treated as ‘normal’ pay, and holidays accrue during periods of sickness absence (paid or unpaid) and all Statutory Maternity Leave.
Recently it has been agreed that RHP is permissible as long as there is a justifiable reason for it, that employees are fully aware of the practice and know that they are not losing statutory entitlement as a consequence and that it is clearly shown on a statement, usually the pay advice, what is being paid. Records Must be kept which can show average hours worked, rest breaks and details of holiday paid. A list must be kept of those who have chosen to opt-out of the 48-hour rule. COPYRIGHT © 2021 THE CHARTERED INSTITUTE OF PAYROLL PROFESSIONALS Derogations Those with unmeasured working time, which includes managing executives and family workers, are only subject to the regulations in respect of paid annual leave. Managers and others who determine their own hours may exceed the 48-hour maximum. Also, specified circumstances where there is a need for continuity of service or there is a surge in activity are accepted as allowing for a derogation from the hours and rest break provisions. This includes security services, hospital services, tourism, and dock workers. Holiday pay The amount of pay due to an employee who takes annual leave has been the subject of considerable debate and litigation in recent years. This has been caused by the fact that whilst the right to paid annual leave is enshrined in two working time regulation, The Working Time Regulations 2001 and The Working Time Regulations 2007, the rate of pay applicable when a worker actually takes leave is determined by the their right to a rate of pay which can be found in The Employment Rights Act 1996. Starting with Macconnachie v Leisure Leagues UK Ltd (2002), UK tribunals and the court of justice of the EU have been asked various questions about how to determine the number of hours applicable for holiday pay and whether this included holiday pay, Bamsey v Albion Engineering and Manufacturing Ltd (2003), and subsequently what the status of a bonus or commission payment is in terms of holiday pay, King v The Sash Window Workshop Ltd (2014). At the time of publication there are still outstanding questions to be determined by the courts but the position to date continues to be that holiday pay must be determined by the normal working hours of the worker, including any guaranteed overtime and any non-guaranteed overtime. No printing, copying or repr duction permitted. Guaranteed overtime is defined as work which an employer includes as part of the contractual terms and conditions of employment. As a consequence the employer is obliged to make the work available, or pay compensation for it, and upon doing so the worker is obliged to carry it out. Failure to do so would, theoretically lead to some form of disciplinary action. Such circumstances leads to the guaranteed overtime period naturally being a part of the normal working hours of the worker. Non-guaranteed overtime is a period of work which is not enshrined in the workers terms and conditions of employment and hence would normally not be included in working time, however, because the work, when offered, must be performed by the worker the courts have determined that this too must be included in normal working time for the purposes of determining holiday
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