If a carer works regular hrs 35hrs one week and, of her own choice, works 45hrs the following week, over a 4 week pay period, what would her contract and holiday pay be based on? She is new and at present i can fulfill her hours but with a contract should it be the lower amount of hours per week, or would the calculations be based on an overall monthly total ?

Answered by Sheila Scott

Dear Jenny,

Thank you for your question. I’ve sought feedback on your question from our Employment Law experts. Oliver McCann of Napthens provided the following response:

The contract should be set at regular hours of 35 hours per week ie the minimum we expect the employee to perform.

The contract should however make it clear that the employee may be required to work additional hours should the needs of the business require it. It is up to the employer whether such additional hours attract over time rates.
In terms of pay, the employee should be paid for their hours of work performed in that pay period, applying overtime rates where applicable, unless the employee is salaried and is required to work such hours as the business may require.
In terms of holiday pay, recent case law has confirmed employees should get paid their normal pay for any holiday leave. As such, if an employee has irregular or fluctuating hours from one week to another, holiday pay should be calculated using the average hours per week/per day in the 12 weeks prior to taking annual leave.  If the “extra hours” are overtime, then recent case law suggests that over time should be included in the calculation of holiday pay where the over time is regular. So if the overtime is frequent, I would use the average pay over the 12 weeks prior to taking leave to calculate the rate of a days or weeks pay. If the overtime is very irregular, then you could treat it as voluntary over time and exclude from the calculation of holiday pay on the basis this is not part of their normal hours – though note, case law seems to be moving in the direction where even irregular voluntary overtime should be included in the calculation of holiday pay.

If you have any other questions, please do get in touch.

Best wishes.

Sheila