Holiday pay

The right to rest: Your right to holiday pay and how to calculate it

It's a common myth that performers are not entitled to holiday pay. But in most cases this isn't true. As performers, you are often defined as a 'worker' and therefore entitled to holiday pay.

This guide tells you why and how to calculate what you can claim.

Am I entitled to Holiday Pay?

You are entitled to holiday pay if you are defined under law as either a 'worker' or 'employee'.

People with worker status have access to statutory rights such as holiday pay, maximum working hours and the National Living Wage.

Could I be defined as a 'worker'?

If there is a contractual obligation for you to undertake work personally, you are defined under law as a worker.

You can test your worker status by thinking about these questions:

• Could you provide a substitute to do the work?
• Can you control how and when the work is done?
• Does the job involve you taking on a financial or business risk?
• Are you responsible for your own expenses?

If your answer is 'no' to at least three of these questions, you are most likely to be a worker and therefore entitled to holiday pay and other statutory rights.

It is the reality of the contract that you work under that determines your worker status, not the way you pay tax and National Insurance or the contract which an employer decides to issue. The majority of performers are self-employed for tax and National Insurance purposes, but are workers for the purpose of employment law.

What to do if you are not paid it

Paid holiday is a statutory right for workers and employees. This means it is enshrined in law and it is illegal for an employer not to pay it. As this is a statutory right, it doesn't matter if you are working on an Equity contract or not.

Even if you have signed a contract which states you will not receive holiday pay, if you are defined as a worker you are still entitled to it.

If paid holiday doesn't appear on a contract you have been offered, ask for it to be included. It is always better to have holiday pay included in your contract in the first place. You can show this leaflet to your employer.

Contact Equity for guidance. We treat all calls as confidential and will not tell your employer you've called.

If you start work on a contract and are not given paid holiday, you have up until three months after the job ended to make a claim for it through an Employment Tribunal. Negotiation by Equity usually resolves disputes before reaching this point, so speak to Equity for advice.

Rolled up holiday pay

It is against the law to allocate holiday pay as part of your fee. For example, it is illegal for an employer to offer you a weekly fee of £450 inclusive of holiday pay, unless days off within the contract are allocated as holiday. Otherwise, the employer has to separate the fee from any holiday pay entitlement.

How to allocate and calculate holiday pay/holiday pay in lieu

Calculating holiday entitlement/holiday pay in lieu owed can sometimes be tricky. It will partly depend on the number of days or maximum number of days per week you will work either in general or on average. 

As a consequence of a Supreme Court judgment in Harpur Trust v Brazel, paid holiday entitlement may also include periods in which you didn’t work but remained technically engaged, such as when there are gaps within a tour.

When paid holiday is given within a contract

On a 5/6 working days per week contract

Step 1: Calculate entitlement

To understand your statutory minimum entitlements, you would multiple the number of weeks worked for (or engaged for) by 7 and then divide that total by 13 to get your entitlement in days.

An employer could then allocate the required amount of holiday within the contract without deducting from the weekly salary, or you could request to take paid leave on specific days which should not be unreasonably refused. 

Example

Contract length: 4 weeks (7 X 4) ÷13 = 2.15
Entitlement: 2.15 days

If you were unable to take your full entitlement on an engagement but could take some, then the remainder should be provided to you as holiday pay in lieu at the end of the engagement.

On a contract in which the maximum working days are below 5 days per week or are below 5 days per week on average

The way the law looks at paid holiday entitlement is that workers and employees are entitled to 28 days paid holiday per year or 5.6 weeks whichever is the lesser. In respect of contracts that have less than 5 maximum working days or less than 5 days per week on average, then the most appropriate method would be to use the weekly method to calculate holiday.

Step 1: Calculate entitlement

To work out the overall entitlement in weeks, you would divide 5.6 by 52 and multiply this figure by the contract length.

Example

5.6 divided by 52 = 0.10769

Contract length: 12 weeks

Entitlement = 0.10769 X 12 = 1.29 weeks paid holiday

When Holiday Pay in Lieu is Owed

Calculating Holiday Pay in Lieu

If paid holiday is not allocated within the contract, you must be paid the equivalent amount for holiday not taken.

On a 5/6 working days per week contract

Step 1: Calculate entitlement

(7 X number of weeks worked) ÷13 = entitlement

Step 2: Calculate Average Daily Pay

This is based on average daily pay over the preceding 52 weeks (or entirety of the engagement if less than 52 weeks)

Note: You would only include full working weeks (so if you received a pro-rated reduction because your engagement lasted 9.5 weeks so you only received half a week’s wage, then you would not include that salary for the purposes of calculating average daily pay.

You would also not include for averaging purposes any working weeks in which you didn’t receive paid work for the purposes e.g. if there were 9 weeks in which there was work and 3 weeks in which there wasn’t but in which you remained technically engaged, you would not divide the total salary earnt by 12, but instead by 9 (e.g. the 0 would not be included) but the period in which you remained engaged and the extra half a week in which you worked would typically be included for the purpose of entitlement.

If you were on a maximum 6 day per week contract, then you would work out your average weekly pay over the preceding 52 weeks and then you would work out your average daily pay by dividing that weekly average by 6.

Step 3: Entitlement X average daily pay = holiday pay.

Example

Contract length: 4 weeks of 6 working days per week; Weekly pay: £450 Entitlement: (7 X 4) ÷13 = 2.15
Entitlement: 2.15 days
Average Daily Pay: £450 ÷ 6 = £75
Holiday Pay: 2.15 X £75 = £161.25

Note: If you were on an engagement in which you were generally paid for a 6 day working week, but in some weeks they sought to pro-rate because, for example, you worked less than 6 days on some weeks (but more than 5 on average of the preceding 52 weeks or the entirety of the engagement if less), then you would divide the average daily pay by the number of average days per week you worked. 

On a contract in which the maximum working days are below 5 days per week or are below 5 days per week on average

You would need work out your average weekly pay over the preceding 52 weeks or the entirety of the engagement if less than 52 weeks.

Note: You would only include full working weeks (so if you received a pro-rated reduction because your engagement lasted 9.5 weeks so you only received half a week’s wage, then you would not include that last week’s salary for the purposes of calculating average weekly pay and average daily pay. However, the extra half a week in which you worked would typically be included for the purpose of entitlement.

You would also not include for averaging purposes any working weeks in which you didn’t have any paid work/work but technically remained engaged (e.g. if there were 9 weeks in which there was work and 3 weeks in which there wasn’t but in which you remained technically engaged, you would not divide the total salary earnt by 12, but instead by 9, so the 0’s would not be included). However, as a consequence of the Supreme Court judgment in Harpur Trust v Brazel, you would typically still have an entitlement for the 12 weeks entirety of the engagement.

Step 1: Calculate entitlement

5.6 divided by 52 = 0.10769

Multiply 0.10769 by contract length to get your weekly entitlement

Step 2: Calculate Average Weekly Salary

This is based on average weekly pay over the preceding 52 weeks (or entirety of the engagement if less than 52 weeks)

Note: You would only include full working weeks (so if you received a pro-rated reduction because your engagement lasted 9.5 weeks so you only received half a week’s wage, then you would not include that salary for the purposes of calculating average daily pay.

You would also not include for averaging purposes any working weeks in which you didn’t receive paid work for the purposes e.g. if there were 9 weeks in which there was work and 3 weeks in which there wasn’t but in which you remained technically engaged, you would not divide the total salary earnt by 12, but instead by 9 (e.g. the 0 would not be included) but the period in which you remained engaged and the extra half a week in which you worked would typically be included for the purpose of entitlement.

Step 3: Weekly entitlement X average weekly salary = holiday pay in lieu owed.

Example

Contract length: 16 weeks of 4 working days per week; Average weekly pay: £500
Entitlement = 0.10769 X 18 = 1.93 weeks holiday
Holiday Pay in Lieu: 1.93 X £500 = £965

Please contact an Official for more advice and support on holiday pay.

Holiday pay myth busting

Myth 1

"Performers on short term contracts are not entitled to holiday pay. Only permanent employees get this right."

This is false. You are entitled to holiday pay as long as you are defined as a 'worker'. It doesn't matter how long your contract is for.

Myth 2

"I pay Tax and National Insurance on a self-employed basis. This means I'm not entitled to paid holiday."

This is incorrect. Performers are given a special tax status by HMRC, but this doesn't affect your right to be defined as a 'worker' and receive holiday pay.

Myth 3

"My employer is allowed to include holiday pay in my fee."

This is only allowed if you are assigned holiday within a contract without having your fee reduced, or it's clearly and separately stated what your holiday pay is within your fee. Otherwise, this practice is known as 'rolling up' holiday pay. This is illegal.

Myth 4

"My employer doesn't use an Equity contract. This means I'm not entitled to holiday pay."

This is not true. A worker's right to holiday pay is set in law and is not an optional extra