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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45350
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was working as a nanny. My employer says I took 5 more holidays

Resolved Question:

I was working as a nanny. My employer says I took 5 more holidays than I am entitled and I have to pay it back.
All my holidays were chosen by my employer. He confirmed the days he will be away at the beginning of my employment.
I told him it is fine with me. But he traveled more than my holidays.
Do I really have to pay it back?
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Do you agree you took more than your entitlement and were you paid for taking these days off?

Customer:

Hello

Customer:

here is my contract:

Customer:

Holidays



3.1 The holiday year will start on 10 March



3.2 In each holiday year the Nanny is entitled to 28 working days paid holiday which includes the usual bank and public holidays.



3.3 Holidays are to be taken at such times as may be agreed with the Employer. Unless otherwise agreed by the Employer, the Nanny will not be allowed to take more than two weeks' holiday consecutively.



3.4 All leave must be taken in the leave year in which it accrues. The Nanny is not entitled to carry over any statutory leave into any subsequent leave year.



3.5 Save as provided by sub-clause [3.7] the Nanny is not entitled to payment for unused holiday.



3.6 In the respective holiday years in which your employment commences or terminates your entitlement to holiday shall accrue on a pro rata basis for each complete month of service during the relevant year.



3.7 Upon termination of the employment the Nanny will be entitled to a pro rata payment in lieu of any unused holiday entitlement up to the statutory limit of paid annual leave. Holiday entitlement in excess of statutory leave will only be paid at the discretion of the Employer. The Employer reserves the right to deduct payment for holidays taken in excess of holiday entitlement under this clause from the final payment of salary to be made to the Nanny.



Customer:

I do not agree that I took more than my entitlement. The family decided to travel. I was available.

Ben Jones :

ok but how many days holidy have you taken this year?

Customer:

I worked 9 months. I took 25 days.

Ben Jones :

so were you advised of all days you were expected to take off as holidays (all 25 of them) at the beginning?

Customer:

At the beginning they said they go on holidays a lot, because the mother is from America and have relatives in India..etc. I told them I am happy to go on holidays when they go. Its not written in my contract. I only wanted to show them that I am flexible.

Customer:

I only took one day for medical appointment

Customer:

and the bank holidays.

Customer:

The rest was chosen by them.

Ben Jones :

An employer has the legal right to nominate the days when you take your holiday entitlement. It may be that at some points you end up taking more holidays than what you have accrued by that point in time. If you continue working for the employer and accrue more holidays with time then that will eventually balance itself, however if you end up leaving earlier and have not yet worked long enough to accrue the holidays you have already taken then you will owe these to the employer I’m afraid. This is even if they asked you to take the holidays and you ended up taking more than you had accrued at the time. In the same way that you would be wed holidays which you had accrued but had not yet taken when you left, the employer is entitled to claw back payments for any holidays you had taken which had not yet been accrued. The fact it was their choice does not make a difference unfortunately, the law only looks at what was accrued at the time of termination and what has been taken or remains to be taken.

Ben Jones :

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

I was reading something on the gov, website that I have the right to choose my holidays.

Ben Jones :

you do but the employer can reject your request, at the same time they can choose the days they ant you to take - this is all dealt with in the Working Time Regulations

Customer:

It dosent make sense. If he goes on more holiday than I am entitled I have to agree with it, and pay it back if I leave earlier.

Ben Jones :

yes because it is not holidays you are legally entitled to be paid for yet so if you do get paid you will have to pay it back if you leave early, it is the law I'm afraid

Customer:

But I didnt wanted to be on holiday. :)

Ben Jones :

I know but as mentioned the employer can force you to go on holiday on days they choose, they have that legal right under the Working Time Regulations

Customer:

the other thing is I was on sick leave from the 11nov-22december. I sent him the SSP. Is that mean I am available for work from the 23rd? And I am still on sick leave on the 22nd?

Ben Jones :

yes

Customer:

And working from the 9 march-29 december 2014 for how many holidays am I entitled of?

Ben Jones :

22.7 days

Customer:

My employer said 20

Customer:

Can you check my contract again, please.

Customer:

3.6 part

Ben Jones :

you get the minimum legal entitlement of 28 days. For the period 10 Mar - 29 Dec you have accrued 22.7 days. Check for youself here:

Ben Jones :

https://www.gov.uk/calculate-your-holiday-entitlement

Customer:

In my contract said: 3.6 In the respective holiday years in which your employment commences or terminates your entitlement to holiday shall accrue on a pro rata basis for each complete month of service during the relevant year.

Customer:

Did he say 20 days because I havent completed the 9nov-9dec month?

Ben Jones :

that does not matter, the law determines your holiday allowance, not your contract and the law does not take into account if it was a full month or not - it is the total time you have been there that matters

Customer:

I see. So can I correct him?

Ben Jones :

yes you can and you may use the government site I linked

Customer:

I did already. ...I talked to my insurance company Morton Michel legal team and they said its 20 days because it was not a complete month.

Ben Jones :

as mentioned that does not matter, the law does not state it needs to be a complete month and that is what actually takes precedence - not the contract

Customer:

That is a good news. So I have 2,7 more holidays?

Ben Jones :

yes

Customer:

My last problem is: this family accused me of taking naked pictures of the children.

Ben Jones :

right well that is a separate query I'm afraid, your question was about the holidays, which has been answered - if you want other advice on a separate issue you need to post a new question

Customer:

I told them I was taking only pictures when we were baking cakes...etc. And never enclosed anywhere. What can I do about it?

Ben Jones :

our replies crossed, in case you did not see above - that is a separate query I'm afraid, your question was about the holidays, which has been answered - if you want other advice on a separate issue you need to post a new question

Customer:

Thank you than. Good night!

Ben Jones :

you are welcome, all the best

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45350
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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