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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44867
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I recently started a part - time job on March 10th 2016. I

Customer Question

I recently started a part - time job on March 10th 2016. I am contracted to 20 hours per week and my shifts are 6am - 10am tuesday - saturday. As well as this job I occasionally accept some short term self employed work whenever possible.Recently, as I was aware I would be accepting some self employed work away from my base and also the area I do my part - time job, I thought the best thing to do would be to request some of my annual leave entitlement during this period.The short term / self employed work was from Sunday 10th until Friday 15th April 2016, so from my part time job I had requested and had been granted 5days annual leave from Tuesday 12th until Saturday 16th April. However, on Saturday 9th April, my last shift prior to the granted holiday, I was unable to attend work due to a stomach bug.The earliest I could have informed my supervisor, which I did, was at 6am that same morning ( when the shop opens and staff enter to answer the office telephone ). Since informing my supervisor of my absence I had not been contacted throughout the week of my leave. Upon returning to the place of work this morning my supervisor warned me that I may be called into the managers office and that I will not receive my holiday pay due to the fact I called in sick for the Saturday prior.
To me it seems wrong that they are able to do this. I asked my supervisor how it works and was told that it's due to the company policy wasn't certain whether an employee can be sick before holiday leave and still get it payed, or after holiday leave and still get it payed. With my manager present, I have just completed my shift and still nothing has been asked or said about this issue.I would like to know what the rules are here according to labour laws and to know if they would be on my side in the above mentioned scenario. I'm not even sure I will remain at this job long enough to accrue the 5 days of holiday leave as shifts before April 2016 will not contribute, but I would like to be aware of my legal rights here. It seems like these people I'm working for feel they can make up the rules as they go along, regardless of laws! Needless to say, I have still not received a contract, nor a copy of the companies policies, and my payroll number and clocking on and off badge does not even work!
Please advise.
Submitted: 7 months ago.
Category: Employment Law
Expert:  Ben Jones replied 7 months ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
Expert:  Ben Jones replied 7 months ago.
How much holiday are you entitled to, was that ever discussed?
Customer: replied 7 months ago.
It is the standard 28 days per year, but must be accrued over time worked for the company or periods of sickness
Expert:  Ben Jones replied 7 months ago.
have you checked the company policy to see what they are referring to?
Customer: replied 7 months ago.
No. I have no contract or anything. Not even a copy of the companies policies!
Expert:  Ben Jones replied 7 months ago.
There is nothing in law which states that if someone goes off sick before they are due to go on holiday they are not entitled to any holiday pay as a result. As you know the law allows you to take 28 days holiday as a minimum if you work 5 days a week and anything on top of that is at the employer’s discretion. So a company policy can deal with not allowing you extra holiday on top of that but the initial 28 days will be governed by law. So the leave you wanted here will be due by law rather than under a company policy so such a policy cannot refuse to pay you what you are actually due by law. Saying that in the first year of employment you only accrue your holiday entitlement monthly, at a rate of 1/12th of your annual leave entitlement. So if the holiday year started in April, for the month of Aril you would only accrue 2.3 days holiday and the employer can stop you from taking any more than tat until it has been accrued in further months. You wanted to take 5 days holiday which you would not have yet accrued so the employer can only pay you for the amount you had accrued by the time you went off on holiday, which in your case will not be much. So that is how they can refuse to pay you for leave booked – only if it has not yet been accrued. 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 7 months ago.
On the actual holiday request form it states " I agree that if I leave the employment of the company for any reason that the payment for any holidays taken but not earned pro rata in the current holiday year may be deducted from any final wage or salary ( see Employee habdbook ).......if such final payment does not equal this outstanding amount then I agree to reimburse the Company direct and in equal amount ".
From what I can gather, the only justified reason for them to not pay me the 5 days annual leave is if I was to leave the company before roughly 75/80 days from April 1st ( would be mid June ), because after requesting this period off I had been granted it. Correct?
Are they able to follow through on a policy of theirs even if it conflicts with the laws?
Expert:  Ben Jones replied 7 months ago.
the law will take precedence and in this case under Reg 15A of the Working Time Regulations 1998 the employee accrues leave at the 1/12th rate and the employer does not have to allow them or pay the for more than what has been accrued at the time of taking. They can decide to pay you anyway but anything on top of what you have accrued is at their discretion. Hope this clarifies?
Customer: replied 7 months ago.
..so basically at this moment in time , or at the end of this month, they do not have to pay me any of them granted holidays? But once I have worked long enough with the company they will be obliged to have payed me this annual leave in a later payslip, correct?
Expert:  Ben Jones replied 7 months ago.
Not quite - they do not have to pay you this month once you have taken them because you have not accrued them, you will not get paid for this specific time off once you have accrued them later on, it just means that once they are accrued you can take them another time and still get paid for them then
Expert:  Ben Jones replied 7 months ago.
Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.
Expert:  Ben Jones replied 7 months ago.
Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.

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