You could be anything
Different agencies -different contract- different status
is your issue status or sick/holiday pay?

In reply to Peter Stanway:

It's the fact they want to reduce my holiday pay if I don't maintain 100% attendance in the 12 weeks prior to taking it. I consider myself a fixed hours worker, they say as I'm a temp I'm not considered fixed hours. I don't understand how the length of the contract is relative to that though?

In reply to William:

Fixed hours is not a legal term
Fixed term is.
I suppose average holiday pay works both ways albeit have never given it serious thought.

In reply to Peter Stanway:

It’s a bit of an anomaly, I’d agree, but in my experience it is usual for agency workers to be paid according to the number of hours they actually work.

If your terms are by the hour and you’ve been at the same place of hire less than twelve weeks then how they’re calculating your holiday pay is probably legitimate: albeit with potentially unfair consequences, but the law is not always fair............

Whilst you may rightly be feeling an injustice here, how much financial detriment is this likely to cause you? - hypothetically it could result in significantly diminished holiday pay but if you manage to work near your full assigned hours each week then it won’t be very much at all.

It might therefore be worth reflecting about what’s best for you in the long run: maybe to look positively and resolutely towards how best to secure your future prospects rather than risking getting yourself somewhat embittered about insignificant amounts of money - and also maybe risking becoming known (however wrongly) for stirring things up.

Do hope it all works out well for you.

In reply to David:

Hi David,

Sensible suggestion and I agree, hopefully there won't be any impact as I'll maintain 100% attendance! It is more the principle of it though, I don't like the idea I could be getting short changed! It isn't very inspiring to feel you are being treated in such a way where they will take any little bit from you they can - doesn't make one feel very valued! It seems there is no definitive answer to this and they are hiding in the grey area. I've worked through agencies before and always been paid for a full day's pay when on holiday.

My other question is, I have read that agency workers should enjoy the same benefits as employees who are employed by the company directly. So where my colleagues in the team enjoy additional holiday for example, does this not mean I should be entitled to the same amount as them? Or is this in reference to other forms of benefit?

In reply to William:

Back to the OP, the important question to begin with is "Who pays you?" But it sounds like it's the agency, so the terms and conditions of your employment are something to discuss with them, not with the people for whom you are doing work.

However, your second question is about agency worker regulations, which state that agency temps must be on the same Ts&Cs as employees if their employment on a contract lasts 12 weeks or longer. By and large, this refers to benefits and access to facilities offered to other employees. If, however, you were doing identical work to other employees, you would also be entitled to pay parity. However, I have always been careful to keep temp workers on a deliberately restricted range of duties to be able to show clear daylight between a temp and a permanent employee.

To return to the OP, briefly, the question at hand is the one of holiday pay: this is, strictly speaking, not a legal measure any more. It was once conventional to add an amount equal to 12.07% to the hourly rate of temp workers to represent the salary they would have earned whilst on holiday. Time taken off, therefore, becomes unpaid (and ideally, no time is ever taken off). This has recently been determined as an unlawful practice but still continues for many zero hours and temp workers on contracts of 6 months or less, because who says "no" to an extra 12.07%? When I was working a zero hours temp contract, I certainly didn't!

So although it's not technically legal any more, lots of organizations still do it because no one is likely to complain. However, the 12.07% is calculated on pay actually earned. As sickness absence in unpaid (less SSP from day 4), it makes sense, therefore, that you not earn anything on the days you are absent. If, however, you were to opt out of holiday pay and, instead, accrue statutory paid holiday instead, you would continue to accrue holiday even when on sickness absence.

As I said above, most people like the 12.07% and count on not being sick.

In reply to Robey:

Thanks Robey, but just to be clear - I am not getting rolled up holiday pay. When I book a day off, they'll take the average of my last 12 weeks (or however many there have been) and pay accordingly. My argument is I should get a day's pay as I would if I went to work, regardless of previous earnings.

In reply to William:

The agency has come back trying to clarify its position on this with the following comments:
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Your assignment is for an expected period, however your underlying contract of employment is on a zero hours basis as roles, hours and pay may vary from one assignment to the next. Therefore whilst hours are expected to be regular during this assignment, the nature of your overall employment contract is such that your hours are not fixed and therefore a week’s pay is calculated differently. i.e. your pay varies with the amount of work done.
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For me this is a massive reach, as I am not expecting to work any other assignments for them or stay employed past the end date of this assignment. I also did not get anything that confirms my status as a zero hours worker (and do not believe I am one). What I got was clearly set out, a 6 month contract doing a 35 hour week with a finish date. I don't see how I could possibly be a zero hours worker on that basis?