Can a temp make the choice to receive holiday pay immediately in the UK?

August 13, 2009 2:02 AM

Can a temp make the choice to receive holiday pay immediately in the UK?

My other half is currently on a temp contract with an agency. The company she is working at from the start offered her a permenant job and is going through their normal background and reference checks - these have completed and she has a formal start date of 1st Sept.

Because they needed somebody straight away, they took her on as a temp through an agency until the formal checks were completed. The hourly rate of pay from the agency matches her salary so all is good there. However, on her first payslip, holiday has been deducted. I'm aware this is normal practice with temp staff and the holiday is paid to them during a period of "actual recognised leave" as the European Courts ruled rolled-up holiday pay (ie where the agency pays them holiday up front and it's up to the employee to save that extra for their holiday) as illegal.

Due to her situation, ie starting permanently in a couple of weeks and because she was out of work for a couple of months, she'd rather have the holiday pay immediately; she'll get it all eventually but she really needs it now.

Is it lawful for the employee to choose to get their holiday pay immediately or is this another one of those situations where a the choice has been removed from the employee and they can only get it when she finishes with the agency?

Further, can they be pedantic knowing that she's starting a permanent contract and thus they can't pay for holiday because they know she isn't on holiday and is in fact working, and she can't receive the holiday pay until she takes an actual holiday within her permanent contract?!?!?

Many thanks!

posted by sunkzero to work & money (3 comments total)

Sounds like the main company won't be dealing with the mechanics the agency will. If your partner has a word with the agency, they can probably put it through on weekends. Sounds like it won't be massive amounts yet.
posted by Not Supplied at 2:24 AM on August 13

If I understand you correctly, a specified sum has been deducted from her pay on the basis that she will be paid her normal salary while she's on holiday later in the year. But she will be leaving the agency at the end of the month without having taken any holiday, and thus she will be owed the sum that's been deducted.

I don't think the law comes into this. If those facts are accepted by all parties, the agency might at their discretion agree to pay her her "full" salary now and not withhold this sum - or they might not. All she can do is ask, and she may get a "yes", or they might reasonably say that the administrative costs of doing the calculations involved and amending their payroll, coupled with the risks that she might change her mind and ask for some holiday before she leaves, make the her request impractical. The end of August is only a fortnight away - are you sure there's enough cash at stake to make it worthwhile claiming it early?

Is the fact that she's staying in the same role causing some confusion here? It may be the same job at the same place, but it will be a with a new employer and it will entail a new contract of employment. She is currently employed by Agency; from 1 September, she's going to be employed by Company. Her agency will need (and want) to get the books straight and pay her what she is owed on 31 August when her employment there is terminated. At that point. they will certainly do the "holiday taken v holiday owed" sum and settle up with her in her final pay.

(IANAL. I do run a payroll of some 130 staff in the UK and sometimes take on staff who started with us though agencies.)
posted by genesta at 1:19 PM on August 13

Here's advice on this subject from one of the UK's biggest temp agencies. Have a look at the pdf downloadable about half way down the page. Whether or not this is her agency, I'll bet they all operate in much the same way. This confirms they will pay her for any accrued but untaken holiday as soon as she leaves.
posted by genesta at 1:31 PM on August 13