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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46763
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Attention of Ben JonesI'm currently trying to settle

Customer Question

For the attention of Ben Jones
I'm currently trying to settle my breach of contract county court claim with my former employer. Part of the claim is a claim for outstanding holiday pay from December 2013. My contract says that holiday pay should be calculated on the basis of the past 2 months salary which they failed to do in December 2013. I have repeatedly asked for balance of holiday to be paid since I left in November 2014 after having read my employment contract properly, but they say I should have raised it at time. I believe that it was a fundamental breach which amounts to around 1100, but they are implying that I have already affirmed the breach. Does their argument carry weight?
Thank you for your assistance.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello how do they believe you have affirmed the breach?
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. can you tell me when in fact you first raised this issue with your ex employer and how long were you employed there please.
Customer: replied 1 year ago.

Hi, they believe I have affirmed the breach by not asking for the outstanding amount earlier.

Also, am I allowed to use highlighter pen on copies of documents submitted to the other side and to the court, or should I leave them unmarked?

Thank you for your assistance.

Expert:  Ben Jones replied 1 year ago.
Hello thank you for that information i will get back to you ASAP with my advice on how to proceed with this. regardsBen
Expert:  Ben Jones replied 1 year ago.
Hello again, you have not necessarily affirmed the breach by not challenging it earlier. This would depend on whether you knew of the underpayments, if you had knowingly accepted to continue working on the assumption you do not want to receive them and other similar factors, which only a court can really decide on. So do not be put off by this argument they have raised as it is certainly not as simple as that. If you are going to go and claim, you should proceed with the claim, even if they are trying to put you off with such arguments.
I would avoid highlighting documents which you will submit as official evidence to the court – if you want to refer to anything specific, refer to the actual document and quote the text you re referring to.
I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46763
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

FAO Ben Jones

I am trying to calculate the daily rate of holiday pay from my contract of employment.

There are 2 clauses in the contract relating to holiday pay in the contract, one relating to holiday pay when in employment and one relating to holiday pay on termination of employment.

The first clause states that holiday pay is based on the calculation of annual salary based upon the aggregate of the last 2 months basic salary pay (I had 2 levels of basic salary based on whether I hit monthly sales target). I am arguing that the daily rate should be based on the number of working days in the year, not calendar days,and is 233 as opposed to 365. Is this correct and will I need to show supporting evidence in case law to the court?

With regard to holiday pay on termination clause it states that the calculation method is based on annual salary(not basic annual salary) divided by 365 days. However, My former employer argues that they will also base the holiday pay outstanding upon the aggregate past 2 months basic salary to calculate the annual salary figure divided by 365 days, but I would like to argue that the annual salary should be calculated at the higher rate basic salary plus commission. Does this argument have merit? I believe that the employer is construing this vague clause in its favour so it pays me as little as possible.

Also, does holiday pay on termination mean holiday pay on termination of employment contract, or upon leaving employment. I am arguing that as I have not been paid my contractual payment in lieu, my employment has not been effectively terminated (geys v societe generale) and the employer is in breach.

Thank you for your assistance.

Expert:  Ben Jones replied 1 year ago.
Hello, sorry I have been offline for a few days. The way holiday pay is calculated is actually set out in law. It depends on whether the worker has normal working hours or not.
For those with no normal working hours, a week's pay is calculated as an average of all remuneration earned in the previous 12 working weeks (as per section 224, Employment Rights Act 1996). This includes any overtime payments and commission.
For those with normal working hours, their week's pay is calculated with reference to those hours. This usually means basic salary, disregarding any overtime hours and without any additional bonuses, commission payments, overtime premiums or allowances.
For workers with normal working hours whose pay varies, either by reference to the hours worked or the amount of work done, a week's pay is calculated using the worker's average remuneration over the 12 weeks before the calculation date.
The above is the calculation used whilst the employee is still in employment and receives holiday pay for taking holidays during their employment.
On termination of employment, a worker is entitled to pay in lieu of unused statutory holidays. The payment is calculated in accordance with either a relevant agreement agreed between the worker and their employer or, where there is no such agreement, by using the following formula:
(A x B) − C
Where:
• A is the period of statutory leave to which the worker would have been entitled for the whole of the leave year in which employment ends
• B is the proportion of the worker's leave year which expired before the termination date, expressed as a fraction.
• C is the period of leave taken by the worker between the start of the leave year and the termination date.
So to give you an example, a worker's leave year runs from 1 January to 31 December. He leaves employment on 15 August (227 calendar days into the year) having taken 11 days' holiday during the leave year. As the worker was on a full-time contract for 5 days' work a week, this amounts to 2.2 weeks (2 weeks and 1 day) of his 5.6 week entitlement. The calculation is as follows: (5.6 x 227/365) - 2.2 = 1.283. He is therefore entitled to 1.283 times a week's pay, calculated as mentioned above.
As you can see it is not a simple topic and in summary the employer could have its own agreement which deals with how holidays are calculated at the end of your employment.
Finally, holiday pay on termination would usually mean once your employment has been legally terminated. So if the employer had tried to terminate the employment in breach of contract they will have to consider paying for the holiday which would have been accrued had you been allowed to work through your notice period.
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46763
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

FAO Ben Jones

I

Hi, I'm due to exchange witness statements on Friday, but have just heard from the defendant's solicitor to say that his clients witness, an HR manager who will be giving a statement on behalf of the company cannot submit statement on time due to unforeseen circumstances, and he is hoping to get the statement in the feasible future, as he does not know when she the party will be returning to work The other side is a large corporate with several HR managers; this appears totally unacceptable to me, the court order says that if statements are not submitted in time the party may be prohibited from calling the evidence. Also the company was 11 days late with the exchange of its bundle for no valid reason. Can I make an application for the evidence to be struck out or do I wait nearer to the hearing on 4 march, is there a form I should use? This is a small claims matter.

Thank you for your assistance

Expert:  Ben Jones replied 1 year ago.
Hello, whilst I agree that the other side’s failure to adhere to the timelines is not ideal, in reality this does happen and a court will not automatically reject someone’s evidence just for that. There could be various reasons for delays and the fact there has been a delay does not mean that the related evidence should no longer be heard. The court has a duty to act in the interests of justice and if a delay will not unduly prejudice the other side then a delay can be allowed. So the initial deadline may not have been adhered to but would a delay unduly prejudice you or will you still be able to consider their evidence in time for the hearing – that is what the court would be looking at. You have nothing to lose by asking the court to consider striking out that evidence and the worst that could happen is they say no – you would not be penalised for it, so if you feel strongly about it then you could at least try. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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, ***** ***** a format I need to use if i apply to the court to have it struck out, or do I just send an email to the judge?

Expert:  Ben Jones replied 1 year ago.
You would write a letter to the court asking them to adhere to CPR Rule 32.10 which states that "If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission." So as you can see you would basically be pointing out to them court that the statement was served out of time and as such it should not be used, but the other party can then make an application to the court asking for their permission to allow them to use it even if it was submitted with a delay.
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46763
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.
If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Customer: replied 1 year ago.

Hi, can the Defendant refer to my bundle in its witness statement even though we haven't agreed a joint bundle? Can the judge order me to agree a joint bundle? Can I ask the defendant to exclude a document if I believe it is not relevant 3 weeks before the hearing Also, the defendant has recently sent an offer letter to settle saying that he will refer to the letter in court - I've rejected the offer. Is he allowed to do this if the letter is not in his bundle? The case is in the small claims court.

Thank you for your assistance.

Expert:  Ben Jones replied 1 year ago.
Hello, if you have supplied a bundle yourself then they can refer to it, although ideally there should be a joint bundle for ease of reference The court can make an order that a joint bundle is agreed. You can ask them to exclude a document but if they refuse then you will have to seek the court's permission to exclude it Letter of settlement are not included in the bundle. However, they can be used later on in the proceedings if for example you had a reasonable offer which you rejected and then went to court and did worse off than the offer
Customer: replied 1 year ago.

FAO Ben Jones

I'm due to go to court on Friday for a small claims case. Will I get my court fee and hearing fee refunded if I win part of my case. Does it matter that the defendant made an offer in full and final settlement that I have rejected because it is only 20% of the claim. Thank you for your assistance.

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