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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6307
Experience:  15 years experience of advising on employment law matters
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I've noticed that a holiday pay calculation clause in my contract appears to be u

Customer Question

Hi, I've noticed that a holiday pay calculation clause in my contract appears to be unlawful as it breaches section 221_224 of era 1996 which says holiday pay for employees whose pay varies according to amount of work done should be calculated on basis of previous 12 weeks worked. My contract says that holiday is calculated on basis of aggregate of 2 preceding months worked. Can I state on particulars of claim in county court that clause is unlawful, as in breach of statute; i am out of time for employment tribunal claim.
Thank you
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
Hello than you for your question are you still an employee of the company?
Customer: replied 2 years ago.

No, employment was terminated 6 months ago but still owed various sums of money

Expert:  taratill replied 2 years ago.
Hi unfortunately this is not a breach of contract situation it is a breach of statute law. This means that the correct place for the claim to be heard is the Employment Tribunal, but as you have correctly identified, you are out of time to bring a claim there. I do not think there is merit in raising a claim on this basis in the County Court, unless it is an add on to a clear breach of contract. I realise that this is not the answer you were hoping for but it would be unfair for me to give you false hope. If you have any further questions please ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
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Customer: replied 2 years ago.

Thank you very much. I do have a breach of contract claim for unpaid payment in lieu, unpaid salary and outstanding holiday which I've already served, could I apply to have the issue considered with this claim. Also I am arguing my contract of employment has not been effectively terminated yet (geys) so could I apply to employment tribunal within 3 months if company pays outstanding sums, or does 3 months definitely run from date of leaving?

Expert:  taratill replied 2 years ago.
Can you explain exactly how you intend to argue the employment has not terminated?
Customer: replied 2 years ago.

I would argue that they did not give valid notice that they were terminating my contract in accordance with the terms of the contract (geys)and that they didn't make the correct payment in lieu; they have admitted they have not paid correct pilon but want me to sign disclaimer that I won't make any legal claims against them if they pay it. I had 23 months service so don't qualify for unfair dismissal, as have been advised that I was unfairly dismissed also for other reasons. I'm considering also a part 8 claim for harassment which I'd like advice on in a separate question although I have been advised the threshold is high

Expert:  taratill replied 2 years ago.
Hi I'm afraid if I am completely honest with you the fact that incorrect notice was not given would not bring you into the 2 year threshold.
There has been caselaw on this point and the Tribunal is quite clear that this is not a way around the 2 year rule.
Effectively you can be dismissed without proper notice on the day before the 24 months and you are not protected. It is a weakness of employment law from the point of view of the employee.
If you want to amend your claim, you will need to apply to the court to do so.