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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47373
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I've got a question about holiday pay. I am aware as of

Customer Question

Hi, I've got a question about holiday pay. I am aware as of July 2015 that the entitlement to holiday pay under the working time regulations does not confer a contractual right and claims can only be backdated 2 years but am I right in thinking that I can still make an claim for breach of contract in the county court in respect of a holiday pay clause in my contract of employment where it says that my holiday pay is based on the aggregate of 2 previous months salary and I am questioning the company's daily rate calculation amount using their contractual formula.
Also, I would like to make a small amendment to a particulars of claim I have already served on company. The amendment refers to an additional amount claimed arising out of the same facts. Do I write to the other sides solicitors including amended particulars and asking if they consent to the amendment, if they don't do I make an application to the court.
Thank you for your assistance.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. What period does your claim refer to?
Customer: replied 1 year ago.

Hi, it refers to holiday taken from December 2013 to December 2014

Expert:  Ben Jones replied 1 year ago.
Hello, whilst it is true that from July 2015 you can only go back 2 years when making a backdated holiday claim, you should still be able to pursue this in the employment tribunal because obviously the claim is for a period within the last 2 years so the tribunal would be able to hear it. However, if you were to take this to the County Court instead, you may only do so if this applies to a contractual entitlement to holidays, in addition to what you are entitled to by law. So if you are just claiming about your minimum holiday entitlement given to you by law, this is not a contractual claim. If you are claiming about something which is given to you under contract and in addition to your minimum legal entitlement, then that would be a contractual matter which the County court can deal with.
In relation to the amendment of the particulars of claim, in the first instance you should contact the other par and for their agreement to make the amendments. If they agree you would usually be able to make the changes without a court hearing. If they disagree then you will have to seek the court’s permission. The rules dealing with this can be found here:
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part17/pd_part17
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.

Thank you very much. With regard to the 2 year back date in the tribunal, isn't there still a 3 month limit from last underpayment and claim can be backdated 2 years from that date, or can I claim in the tribunal for an underpayment in December 2013 and December 2014?

Expert:  Ben Jones replied 1 year ago.
You are correct, if there was a series of under payments with no break of more than 3 months between them, the time limit will start from the end of the under payments. Sorry if I confused you earlier, the time limit to claim is indeed 3 months from the date the last underpayment occurred so if it was in Dec 2014 then you are out of time for the tribunal. Therefore court is the only option but only if this was a contractual entitlement rather than your statutory one. Hope this clarifies
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Customer: replied 1 year ago.

Thank you. How long does the other side have to respond to a request to consent to amendments to particulars of claim before I ask permission from court. I sent amended particulars with amendments underlined in red to other sides solicitor. If they consent, do I then serve amended particulars as new document with no red markings and a copy to the court?

Expert:  Ben Jones replied 1 year ago.
When did you send the amended particulars?
Customer: replied 1 year ago.

Thursday 1 October

Expert:  Ben Jones replied 1 year ago.
Ok thanks will get back to you later today
Expert:  Ben Jones replied 1 year ago.
You can give them a set time period to respond, say 7-10 days. If they consent then you need to serve the new amended statement, without the old text, so a brand new document with the existing version – as the Rules state, the amended statement of case and the court copy of it should be endorsed as follows:
(1) where the court’s permission was required:
Amended [Particulars of Claim or as may be] by Order of [Master ............][District Judge .............. or as may be] dated...............
(2) Where the court’s permission was not required:
Amended [Particulars of Claim or as may be] under CPR [rule 17.1(1) or (2)(a)] dated..................
Customer: replied 1 year ago.

Thank you

Expert:  Ben Jones replied 1 year ago.

You are welcome

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