FAQ’S AUGUST
When does overtime have to be included in holiday pay?
Holiday pay must be calculated on the basis of the employee’s normal pay. Where an employee normally works overtime, this should be included in the calculation of their holiday pay.
Overtime that the employer is contractually obliged to offer and that employees are required to work must always be included in holiday pay.
There is no definition setting out how regularly overtime must be worked for it to be included, but the general principle is that pay that is “normally received” should be included in holiday pay. If an employee
has worked a settled pattern of overtime over a period of time, payment for that overtime is pay that they normally receive and must therefore be included in holiday pay. Where there is no settled pattern of overtime, the employer should calculate average pay over a reference period leading up to the period of
annual leave, although the courts have not addressed what a suitable reference period would be.
If an employee asks for a copy of their “personnel file” is the employer obliged to supply all the
information held on the employee?
Under the General Data Protection Regulation (2016/679 EU) (GDPR), individuals are entitled to submit
a request for access to any personal data that the employer holds about them, ie any information from which they can be identified, directly or indirectly. The GDPR covers personal data held on a structured manual filing system as well as computerised data. The employer must comply with such a request by providing the individual with a copy of the personal data requested.
There are some exceptions to an individual’s right of access to personal data. One exception to the
employer’s duty to disclose personal data is where the information requested is for the purpose of management forecasting or management planning, and where disclosure could prejudice the employer’s interests. The other main exception is where disclosure of the information would reveal personal information about a third party who can be identified from the information. In this case, the employer should not automatically refuse to disclose the information. Instead, it should seek either to redact the relevant documents to conceal the identity of the third party or to seek their consent to the disclosure of the
information. The employer can disclose the data without the consent of the third party if it would be reasonable in all the circumstances to do so. What is reasonable will depend on the duty of confidentiality owed to the third party, any steps that the employer has taken to seek their consent and whether
the third party is capable of giving consent or has expressly refused consent.
The employer must respond to a subject access request without “undue delay” and at the latest within
one month of receipt of the subject access request. If the request is complex, the employer can extend the time limit for responding to three months.
What data subject access rights do employees have under the General Data Protection Regulation (GDPR)?
Employees, job applicants and other “data subjects” have the right under the General Data
Protection Regulation (2016/679 EU) (GDPR) to make a data subject access request to obtain details from the employer of any personal data relating to them that it is processing. This was also the case under the previous Data Protection Act 1998 regime, but there are some changes to the rules on responding to a data subject access request under the GDPR.
The data subject has the right under the GDPR to access personal data concerning him or her and obtain
information about it, including the purposes for which it is being processed, the categories of personal data concerned and any recipients or categories of recipients of the data. Under the GDPR, the employer will, in particular, have to inform the data subject of any recipients of the data in countries outside the European Economic Area. It also has to inform him or her of other information not previously required, including the envisaged retention period for the data, or the criteria used to determine that period, and of his or her
rights to request rectification or erasure of the data, to request the restriction of processing and to object to processing.
Under the GDPR, employers and other data controllers must respond to a data subject access request
“without undue delay” and within one month at the latest, although this can be extended by two further months where necessary, taking into account the complexity and number of requests. Under the previous rules, employers had 40 days to respond to a request.
A further change under the GDPR is that employers and other data controllers can no longer charge a fee
for providing information in response to a data subject access request, unless the request is “manifestly unfounded or excessive”, in particular because it is repetitive. Employers could previously charge up to £10 for responding to a data subject access request.
Under the GDPR, if an employer receives a request that is manifestly unfounded or excessive, it can charge a
reasonable fee taking into account the administrative costs of responding to the request; or it can refuse to act on the request.
The GDPR states that, where the data subject makes a request by electronic means, the information “shall
be provided by electronic means where possible”, unless the data subject requests otherwise.
Where an employee’s contract is terminated during their probationary period is the employee entitled to holiday pay on termination?
An employee accrues holiday pay under the Working Time Regulations 1998 (SI 1998/1833) from commencement of employment. The contract of employment may provide that no additional
contractual holiday entitlement accrues until the probationary period has been completed, but the minimum holiday entitlement required under the Regulations accrues from commencement of employment.
This means that if an employee’s contract is terminated during their probationary period, the employee is entitled to be paid on termination in respect of any holiday accrued under the Working Time Regulations 1998. Any entitlement to be paid for additional contractual holiday pay will be a matter for the particular contract.
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