Holiday Pay at Basic rate when regular overtime and higher rate usually paid

Question

I have a friend who works in the service industry and she as standard works anti-social hours (which increases her hourly rate by 50p) and also despite being contracted to do 24 hours per week, she is regularly doing an extra 12 hours per week which means she's working 36 hours per week.

Her contract states that any holidays will be paid at basic rate (i.e no account for anti-social hours usually worked) and no account for average overtime done.

Does she have any recourse to insist her employer take account of the fact she is paid anti-social and overtime hours on a regular basis? Any examples, including case law, would be really useful.

My friend works in the United Kingdom and the contract would be governed by English Law.

Answer 1

According to the U.K. government website www.gov.uk/holiday-entitlement-rights/holiday-pay-the-basics, she has the right to 5.6 weeks statutory holidays, and the pay is calculated based on the average pay over the last 52 weeks, taking into account only the weeks where she was paid. The pay is not the “basic pay”, it is the actual pay including pay for overtime, pay for working unsocial hours, and so on. It doesn’t matter what the contract says if the contract is against the law.

If she gets more than 5.6 weeks holiday, the holiday pay for that extra time would not be controlled by law, but by the contract (basic pay).

So that company is trying to rip her off, in an illegal way.