I have recently resigned from a company where I was a part-time worker.
Over the past few years myself and other part-time workers have been allowed to carry-over any unused holiday from the previous leave year to the next. This has happened because many of the employees regularly work non-contractual overtime, so taking time-off amounts to an unaffordable reduction in their monthly pay.
A number of employees in this situation have this year taken accrued holiday as extended leave or have been paid it on leaving the company.
Now that I'm leaving the company, I have requested for my accrued holiday to be paid as one lump sum in my final wage instalment, but the CEO of the company has ordered that I cannot have this as pay, as I have used-up my entitlement for this year.
If carrying over unused holiday pay from year to year has become usual practice endorsed and authorised by my many line managers in the company, can the CEO now authorise that this pay be revoked from me?
Is it the employer's or employee's responsibility to enforce that statutory holiday is taken within each leave year?
Posted: Sat Sep 06, 2008 6:54 am Post subject: Holiday pay on termination
Roland, welcome to the PayPerShop Forum, and thank you for posting your question.
Actually you have raised a number of related issues. Entitlement to paid holidays is provided by the Working Time Regulations 1998, and the statutory entitlement at present is 4 weeks annual leave plus 0.8 weeks additional leave, rising to 4 weeks annual leave plus 1.6 weeks additional leave from April 2009.
The Regulations do not say who is responsible for ensuring that an employee takes the full entitlement in a holiday year - it only provides a remedy for the employee to take if the employer has not allowed the full entitlement to be taken. An employee may make a complaint to an employment tribunal if the employer "has refused to permit him to exercise any right" under the regulations. Employees should, therefore, make every effort to take their full entitlement and employers must not prevent them from being able to do so.
The issue, in respect of taking full entitlement during the holiday year, is whether the employer has acted in any way that has prevented the taking of the full holiday entitlements. The desire of employees to earn more by working overtime and, as a result, effectively lose money when they take holiday, is unlikely to be viewed by a tribunal as the employer refusing to allow holidays to be taken. If some workers have been allowed to take extended leave, it does not sound as if the employer is being unreasonable.
The Regulations limit the amount of untaken holiday that can be carried forward to the next holiday year to the period of additional leave, i.e. 0.8 weeks at present, and 1.6 weeks from April 2009. None of the 4 weeks basic entitlement may be carried forward. If the employer provides more paid holiday that the statutory maximum, there is nothing to stop that being carried forward. The effect of these rules is that every employee should take at least 4 weeks paid holiday each year.
Without further details it is not possible to comment on whether your employer is obliged to pay you any untaken holiday pay on termination. The statutory calculation requires the employer to determine entitlement in the holiday year to date and to reduce that by any holidays taken. If you are aggrieved by the situation, I would suggest that you discuss the details with an advisor at the Citizens Advice Bureau. But, there is, of course, nothing to prevent an employer being generous and also paying up any untaken holiday pay from a previous holiday year - there just is not any statutory obligation to do so. _________________ Ian Congreave, PayPerShop owner
Posted: Sat Sep 06, 2008 10:58 am Post subject: Holiday pay on termination
Thank you for your detailed answer to my question.
Unfortunately, up to this point, my employer has been practicing a rather relaxed approach to employees taking holiday. Do you think the employer is in breech of WTR by permitting staff to take basic leave entitlement after the end of that leave year?
Rather than being prevented me from taking holiday, my employer has given me reassurances (verbal and written) that this could be carried-over and would available to take in this leave year.
By refusing me to take this now, amounts, in my mind, to a unlawful deduction of wages.
I did actually request to take the time as leave within my notice period, but having been refused, would now like it to be paid as a lump sum in my final pay.
Posted: Sat Sep 06, 2008 10:39 pm Post subject: Holiday pay on termination
In the circumstances you describe, if there was a contractual written agreement for you to carry holiday entitlement forward, there may be an unlawful deduction from wages situation. You should discuss all of the issues with an advisor at Citizens Advice Bureau as soon as possible. _________________ Ian Congreave, PayPerShop owner
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