How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Ben Jones Your Own Question
Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48168
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
29905560
Type Your Employment Law Question Here...
Ben Jones is online now

I have handed in my notice with my employer today and because

Customer Question

I have handed in my notice with my employer today and because I have time off for a family wedding booked within my notice period, I offered to work extra time after that to make up my notice period and because I know my team has a lost a lot of people recently and is likely to be stuck.
My employer has since come back and said they would like me to finish this Friday - 8 days before I was due to go on holiday - and they will pay me an extra week in this month's wages to somehow cover the month's pay I will be missing out on by not working my notice period.
However, my contract states that if the employer wishes I finish before my full notice period is up, they must pay me for the full notice period.
There is no clause stating this is subject to change. The only relevant clause is that they reserve the right to change the holiday policy. However, other employees have recently quit and gone on holidays, which have been paid and the company is saying they are exercising their right to change the holiday policy just in regards ***** ***** and only after I expressed my wish to hand in my notice.
I would like some advice on how to handle the situation and what are my legal rights?
Thanks,
Ger
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 1 year ago.
Hi Ben, Thanks for the speedy response, I really appreciate it. I am with the company since February 2015 and I got a new contract in June 2015 because I relocated to the UK from Ireland at their request.
Customer: replied 1 year ago.
I am happy to send you a copy of my contract if that would help?
Expert:  Ben Jones replied 1 year ago.
If you could attach here please that would help, thanks
Customer: replied 1 year ago.
It is attached - I have just redacted the company name and address as well as my own.
Expert:  Ben Jones replied 1 year ago.
Thanks. So to clarify - they are paying you for the notice period of a month but are including the holiday in it, rather than extending the notice period by a week to cover that holiday, is that correct?
Customer: replied 1 year ago.
No, so I have 13 days off while my brother gets married in Canada and this falls smack bang in the middle of my one month notice period, which should end on Friday May 20th. My manager has suggested I finish work this Friday, April 22nd and they will pay me up to May 6th.However, as I understood it, my contract states that if it is not my choice to end the notice period before May 20th that they have to pay me for the full notice period.What they then said when I questioned it was that there is a clause in my contract stating they can change anything outlined but as you can see, that clause isn't present on my contract.What they are trying to say is they don't want to pay me for the time booked off now because I have quit so they want me to leave this week instead.
Expert:  Ben Jones replied 1 year ago.
Are these holidays once you have accrued up to your date of leaving? In other words, if you look at the time elapsed since the start of the holiday year and up to your date of leaving, are these days you would have accrued in proportion to what you are entitled for the full leave year?
Customer: replied 1 year ago.
What are the legal allowances for vacation time in the UK? I am from Ireland so I'm not fully sure. My company has an "open vacation policy" that allows us unlimited paid leave provided it's approved by our managers, which this time off has been since over a month ago. And for reference, I did not know I would be leaving nor had I applied for my new job at the time of booking the holidays.
Expert:  Ben Jones replied 1 year ago.
You can use this to calculate your entitlement for the period of the current holiday year up until date of leaving 22, April. Let me know what the results are please https://www.gov.uk/calculate-your-holiday-entitlement
Customer: replied 1 year ago.
The form says "The statutory holiday entitlement is 8.6 days holiday." - However, I calculated that from January 1st because our company has an unlimited leave policy so we don't have specific holiday years. it is outlined as such in my contract "The employee shall be entitled to the employers open vacation policy, which is attached to
this contract. Employer reserves the right to change it’s vacation policy"
Expert:  Ben Jones replied 1 year ago.
yes I saw that but in the absence of a specific holiday year, the holiday year would run from the ate you joined the company. I assume the UK part of this employment started in June 2015, if so what date exactly?
Customer: replied 1 year ago.
From June 2015 it says the entitlement is 25 days.
Expert:  Ben Jones replied 1 year ago.
And aside from this period of holidays, how many have you taken so far?
Customer: replied 1 year ago.
3.5 days holiday and I had 5 days off for a family death in January this year.
Customer: replied 1 year ago.
For reference - my entire team has quit in the past three weeks and for some reason I am the only one the company has been this difficult with. I have asked everyone else and nobody else was told the things that I have been. I have also worked for the company for longer than most of these people and have never had any issues or been reprimanded for anything. I have always performed my job to the best of my ability and have only recently been complimented in a great review from my two higher managers last week.
Customer: replied 1 year ago.
All I want is to be paid as normal up until the end of my one month's notice period, which I said would be May 20th (to finish the week out) or May 18th if they want it to be to the day.
Expert:  Ben Jones replied 1 year ago.
thanks, will get my response ready and reply shortly, just after 10pm as travelling at present
Customer: replied 1 year ago.
No problem at all, thanks again for taking the time to look at this. I really appreciate it.
Expert:  Ben Jones replied 1 year ago.
Thanks for your patience. Regardless of what the contract says, you have your legal right under legislation which the employer cannot change or ignore. One of these fundamental rights is of holidays. The Working Time Regulations entitle workers in the UK to a minimum of 28 days’ holiday a year (for a full time worker working 5 days a week). This must be used in the holiday year in which it is accrued – the holiday year can be nominated by the employer to run between specific dates, or in the absence of anything like this, the holiday year runs from the date the employment started. In your case, you started working here for UK law purposes in June 2015. So in the event that no specific holiday year is stipulated in your contract your holiday year runs from that date and you get 28 days holiday for the year to June 2016, assuming you are a full time worker. The holiday entitlement accrues on a pro rata basis so by the time your employment ends you would have accrued 25 days. If your employment terminates partway through the holiday year you would be entitled to be paid for any accrued holidays which remain outstanding at the time of termination. If you are working through your notice period the employer can force you to take all or part of your holidays as part of your notice period. However, if they are terminating you in lieu of notice then the outstanding holidays must still be paid to you. The fact that you had the time booked off already makes no difference – all that matters is how much you had owing at the time you left. You need to take off any holidays already taken from the total allowance but in this case if you had only taken 3.5 days and your entitlement is 25, then you are actually owed 21.5 days by law which you must get in addition to any notice in lieu. This is your basic legal position. I have more detailed advice for you in terms of the steps you can follow should the employer fail to pay you what you are due, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.
Thanks. Failure to pay for holidays owed amounts to an unlawful deduction from wages, which is made illegal under the Employment Rights Act 1996. In order to try and resolve this, the employer should be contacted in writing, advised that this is being treated as unlawful deduction of wages and ask them to pay back the money within 7 days. Advise them that if they fail to pay the money that is owed, legal proceedings could follow. If the employer does not return the money as requested, the following options are available:1. Employment Tribunal - the time limit to claim is only 3 months from the date the deductions were made. To make the claim, form ET1 needs to be completed and submitted - you can find it here: https://www.employmenttribunals.service.gov.uk/employment-tribunals2. County Court – this is an alternative way to claim and the advantage is that the time limit is a much longer 6 years and is usually used if you are out of time to claim in the Tribunal. The claim can be made online by going to: ***** ***** by warning the employer you are aware of your rights and are not going to hesitate taking further action they will be prompted to reconsider their position and work towards resolving this.
Customer: replied 1 year ago.
Thank you so much, this is so helpful. And regarding their decision that they want me to finish in work on April 22nd instead of working out my month's notice until May 18th - are they still obliged to pay me as normal until that date? (in UK law and as per clause 14.4 in my contract).
Expert:  Ben Jones replied 1 year ago.
Yes, you are being terminated in lieu of notice - they must pay you as normal to cover the remaining period of your notice
Customer: replied 1 year ago.
Great. Is there any legal document I can quote if they dispute this? Or should reference to my contract be enough? I had already mentioned this to them today and their response was that there's a clause in my contract saying they can change anything in it but that clause isn't there from what I can see.
Expert:  Ben Jones replied 1 year ago.
they can't change the law, whatever is in the contract. the holiday issue is one given to you under the Working Time Regulations 1998. The notice issue is a matter of contract law, this is common law, not stipulated in legislation
Customer: replied 1 year ago.
That is great news. So to clarify if they continue to suggest I finish this week and refuse to pay me for my notice period and the holidays, they are in breach of my contract?
Expert:  Ben Jones replied 1 year ago.
In breach of contract and in breach of the Working Time Regulations, so breach of legislation
Customer: replied 1 year ago.
Thank you so much. I truly appreciate your help and how great the service is after what has been a very long and difficult day. Will I still be able to view this conversation tomorrow so I can look at it when I am writing to them?
Expert:  Ben Jones replied 1 year ago.
You are welcome and yes, this conversation will be saved here so you can access it as and when needed
Customer: replied 1 year ago.
Hi Ben, Is it possible to ask for your advice on this matter today? I have talked to my boss and I would like to share his response with you.
Expert:  Ben Jones replied 1 year ago.
yes you van do it on here, depending on how much more advice you require or how involved this gets it may have to be posted as a new query but short follow ups I can do on here, thanks
Customer: replied 1 year ago.
No problem, I understand. Thanks again. So, I proceeded in telling my manager this morning that what they had suggested was in breach of contract and legislation and this is the response I received:" I'm not really sure what else I can say other than, this has come from both the CEO and CFO of this company, so there really isn't much of a debate about any of this.It is highly unusual for someone to take three weeks off during their notice period, and as such the circumstances that would normally apply to your notice period has changed.As outlined in the contract that you signed, the company reserves the right to change the terms of your contract if the circumstances permit. You want to take three quarters of your notice period as holiday, do you actually think that's fair?Considering how many people are left in editorial, this is a period of tremendous uncertainty for everyone.You chose when to hand in your notice, and it seems you want to punish the company because of it. The offer still stands of you working one week of your notice now, and three weeks when you return (with holiday time unpaid). Or leaving this week, and being paid two weeks to be on holiday.If you want to take this to tribunal, we'll have to dismiss you as soon as legal proceedings start with no pay. "
Customer: replied 1 year ago.
To clarify - I do not have three weeks booked off, this is a mistake he keeps repeating despite the fact I have corrected him. It is 13 days. This time was booked months previous to even applying for another job or handing in my notice and I'm happy to provide evidence of that.The offer to leave now with 2 weeks holiday pay excludes any pay for my one month's notice period.I have checked with other employees who are currently working their notice - one who was paid for 2 sick days last week and another who is currently on holidays and is being paid for these days.For reference - this is a media organisation, which has now lost all of its European journalists in one month. I am the last to hand in my notice so the team is under immense pressure.I have contacted the CEO directly to try and resolve this.
Expert:  Ben Jones replied 1 year ago.
Quite a bit of nonsense coming out from them there. It basically appears that they are aggrieved about the situation and are treating the word of the CEO and CFO as law, which is certainly isn’t. The threats of dismissal – you can easily avoid this by just allowing your notice to expire and the employment to end by resignation before you submit a claim for the amount owed – you have 3 months from dismissal to do so anyway so no immediate rush. Once your employment has ended they cannot retrospectively dismiss you. To claim you are punishing the company is ludicrous – you have legal rights, whether they like them or not, you have these and can pursue and apply them, even if they are not happy about it. The law is clear – you are resigning and are due your contractual notice period, if they decide to terminate you in lieu of notice then you must be paid for the remainder of the notice period. If you have any outstanding holidays then these are due to you under law as discussed and are separate to the notice period. What they could have done to reduce the impact of this is simply allowed you to work your notice period and taken your holidays as part of it – then they would have only had to pay you for the holidays taken and the bits in between when you worked, instead they now have to pay you for the notice period in full AND the outstanding holidays. So they have shot themselves in the foot here, but that does not mean you have any lesser rights. So if you cannot resolve this with them now, just ;eave as instructed, wait for the pay to come through and if you are missing hat you are due – make your claim.
Customer: replied 1 year ago.
Hi Ben,Thanks again for your advice earlier today. Following that email I stopped dealing with the Editor and went direct to the CEO and CFO who were able to resolve it in one message confirming that they will be paying me for my holidays and notice period and I will work my notice with the holidays in the middle and finish up on May 18th. So it is all sorted now.It seems they had no idea what the Editor was suggesting so I assume they will deal with that internally.Thanks again for your help, I really do appreciate it.
Expert:  Ben Jones replied 1 year ago.
You are welcome and glad it has all been resolved