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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46182
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have a question about holiday pay

Resolved Question:

I have a question about holiday pay
Submitted: 6 months ago.
Category: Employment Law
Expert:  Ben Jones replied 6 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. Can you please provide more details of your query?

Customer: replied 6 months ago.
I undertook temporary employment with a company teachingon three separate occasions over the past 12 months. Each time, I was refused holiday and have subsequently accrued holiday leave at the rate of 12.07% of hours worked as below:
1. 6th July - 1st August 2015 - 10.75 hours (inc 0.97 hours of holiday from overtime work)
2. 4th October - 6th December 2015 - 1.81 hours
3. 4th July - 12th August 2016. - 16.54 hours (inc 1.87 hours of holiday from overtime work)
I have written to the company on several occasions asking for this to be paid and have been refused. Last week I received an email from their lawyers (copied below), stating that I would only be paid £1 in holiday pay as my contract included a clause that seems to wave my statutory right to be paid holiday pay at my standard rate. I should have accrued the amount of £1455. I am no longer working with the companyy. I have initiated the early reconciliation process with ACAS but suspect that this will go to an employment tribunal.
I am therefore writing to see if, from my understanding of the law, I have a case and if so, whether what they have written into teh contract about paying £1 for every 40 hr of holiday is legitimate?
Best wishes,
Dr. ***** *********
Dear Sir
Your claim for accrued but unused statutory paid leave
We are instructed in the above matter by ********* ********* ********* ). The writer, ********* , is Company Secretary of the Company.
You were engaged by the Company between 6th July and 1st August 2015 as a seasonal teacher. During that period you worked 81 hours at the rate of £50 per hour. You were also paid for 1 hour’s attendance at a staff meeting and 7 hours supervising a coach excursion, but these were paid at the rate of £10 per hour, not £50 per hour. During that period you therefore accrued 9.78 hours of paid leave at £50 per hour (£489) and 0.97 hours at £10 per hour (£9.70).
You were engaged by the Company from 4th October to 6th December 2015, again as a seasonal teacher, although on this occasion working at the Company’s International Study Centre at Yarnton Manor. You worked 15 hours at the rate of £50 per hour, and accrued 1.81 hours of paid leave at that rate (£90.50).
Most recently, you were engaged by the Company from 4th July to 12th August 2016 as a seasonal teacher. During that period you worked 121.5 hours at the rate of £50 per hour. You are also due to be paid for 15.5 hours supervising an excursion to ********* ********* . This will be paid at the rate of £10 per hour, not £50 per hour, and you were, or ought to have been, aware that this was the applicable rate as a result of correspondence with ********* and staff training provided by the Company.
During your 2016 contract you therefore accrued 14.67 hours of paid leave at £50 per hour (£733.50) and 1.87 hours of paid leave at £10 per hour (£18.70).
Your employment contract in 2015 contained the following provision in clause 12(b), while an identical provision appears in the second 2015 contract and in the 2016 contract (in the latter case as clause 11(c), owing to formatting issues):
You will accrue entitlement to paid holiday at the rate of 12.07% of your time worked, or 7.242 minutes of holiday for every hour worked.
This provision is in accordance with your statutory right to paid leave.
Clause 12(c) of your 2015 contracts (11(d) in the 2016 contract) provides that:
Holiday shall be taken at such time or times as shall be approved in advance by a Director of the company. Due to the nature of the courses run by the Employer, it will be necessary to restrict your ability to take holiday during certain periods.
This provision entitles the Company to turn down a request to take paid leave during certain periods. Owing to the nature of the Company’s summer school programmes, it will often be necessary for it to reject a request for leave while a summer school course is running.
Regulation 14(3)(a) of the ********* ********* 1998 (“***”) provides that where a worker has accrued but unused leave on termination of his employment, he shall be paid ‘such sum as may be provided for for the purposes of this regulation in a relevant agreement’.
Clause 12(e) of the 2015 contracts (clause 11(f) in the 2016 contract) provides that:
n the event that you have accrued but unused holiday entitlement for the holiday year in which termination takes place at the End Date of your employment, we will pay you an additional sum in lieu at the rate of £1 per 40 hours of holiday (or part thereof).
This provision is a ‘relevant agreement’ for the purposes of Regulation 14(3)(a) of the ********* and entitles the Company to pay you a sum other than the rate which you would have been paid had you taken the accrued leave, in this case £1 per 40 hours of leave or part thereof.
You were paid £1 in the August 2015 payroll in lieu of accrued but unused holiday under your 2015 contract.
Customer: replied 6 months ago.
You were paid £1 in the August 2015 payroll in lieu of accrued but unused holiday under your 2015 contract. An oversight resulted in your not being paid the £1 you were due in lieu of accrued but unused leave at the end of your second contract in 2015, but the Company will add this to the sum to be paid to you in the September 2016 payroll. In the September 2016 payroll the Company will also pay you £1 in lieu of accrued but unused holiday under your 2016 contract.
You are not entitled to any additional amount in respect of accrued but unused leave.
Yours faithfully
Customer: replied 6 months ago.
Hi
I realise that I've put some personal information in the above answer - how do I go about deleting it?
Expert:  Ben Jones replied 6 months ago.

Thanks, ***** ***** submit a request for the removal of personal information.

Your interpretation of the situation is correct and whilst theirs is correct to a certain extent too, they are somewhat mistaken with their interpretation of the law.

The ********* ********* do indeed appear to suggest that there is scope to agree that a payment in lieu of untaken holiday on termination might be less than that provided for by law, even if that amounts merely to a token payment. However, an employment tribunal took a contrary view in ********* ET/270129/13 and held that a nominal payment in lieu of holiday of £1 was not permitted by the regulations. In the tribunal's view, EU law requires payments in lieu of untaken holiday to put the worker in a comparable position to the position they would have been in, had they taken the holiday during their employment. Therefore, a payment in lieu on termination must reflect the worker's normal remuneration and not a token amount. That I where the employer is mistaken because they are not allowed to just pay a token amount and discharge their liabilities towards paying accrued holiday pay, the payment must be comparable to what you would have been paid had you taken the leave normally before termination.

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 6 months ago.
Hi
£44 seems like a very steep fee - I was told when I signed up it would be £20....
Expert:  Ben Jones replied 6 months ago.

I do not deal with fees unfortunately, this is something you must raise with customer services but looking at the value of the question it would be around the £20 mark

Expert:  Ben Jones replied 6 months ago.

Aside from that has your question been answered?

Customer: replied 6 months ago.
Ok I will speak to them. Perhaps it's just £44 to speak to you on the phone and I've confused myself!In your opinion, if the ACAS proceeding do not work, what are the chances I would be looked upon favourably at a tribunal?
Expert:  Ben Jones replied 6 months ago.

oh right yes that sounds about right, you do not have to pay anything extra if you do not want a phone call, so you would not be charged that.

Well as you can see there has already been a decision along some very similar facts that has decided in the favour of the employee. The decision is not binding but can be persuasive so whilst I cannot predict the utcome of the claim if you were to make one, history would show that you should have a better than average chance of success

Customer: replied 6 months ago.
Thanks - just before I close the question - are there any more similar cases that are relevant?
Expert:  Ben Jones replied 6 months ago.

A European Court case - Schultz-Hoff v Deutsche Rentenversicherung Bund [2009] IRLR 214, in which the ECJ stated that where a worker "has not been able, for reasons beyond his control, to exercise his right to paid annual leave before termination of the employment relationship, the allowance in lieu to which he is entitled must be calculated so that the worker is put in a position comparable to that he would have been in had he exercised that right during his employment relationship.”

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46182
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 6 months ago.
Great! Thank you!
Expert:  Ben Jones replied 6 months ago.

You are welcome

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