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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47905
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have untill recently been employed by ***** ***** as a travel

Resolved Question:

I have untill recently been employed by ***** ***** as a travel consultant. I left their employment at the end of July 2015. All employees are entitled to discounted holidays. I booked a holiday in June 2014 using my staff discount for a holiday in May 2015. The holiday took place and shortly afterwards I was offered another position with a different employer. I tendered a callender months notice of my resignation at the end of June 2015.
The main reason for my leaving ***** *****s employment was due to difficulties I had continually encountered with my manager.
I received a letter from ***** ***** stating that I was not entitled to the discount as I had left within a year of going on holiday although I had booked it nearly a full year before the holiday occurred.
I was not aware that this was in my contract as in all my years of working with the company no one has ever been asked to pay this money back. I'm afraid rightly or wrongly I ignored the letter. When I booked this holiday I had no intention of leaving my job and indeed no intention of leaving when I went on holiday. I did work a full year after booking the holiday. I have since heard from ex colleagues that my ex manager had gone into the shop extatic that she had found this and announced that she would "get her now." Untill then she was unaware that this was in any contract. It was never implemented at any time during the time I was employed there. I have spoken to ex employees who have never been asked to repay this money. I was convinced that she was only
making things dififficult for me and that she had done this to spite me.
Today I have received a letter from a debt collection agency who say that I am liable to pay the discount that I received back. I do not have this kind of money and think that this is very unfair as I did work a full year after booking this holiday. I am extremely worried and also very worried. Can you help?
Submitted: 1 year ago.
Category: 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. Do you agree that under this clause you are liable to pay the money back?
Customer: replied 1 year ago.

Sorry not sure what you are asking, I don't think I should have to pay any monies back I booked the holiday in good faith and worked a full year after booking it. I was also never aware of this condition and never aware of ut ever being implemented before.

Customer: replied 1 year ago.

Am I receiving any more assistance? I have replied and got no further response

Expert:  Ben Jones replied 1 year ago.

Well, what I am asking really is if you look at that condition and the wording of it, can the employer ask you to repay this in the circumstances, ignoring factors like the ones you mentioned above? And sorry I was offline by the time you had replied, I may not be able to get to this until the morning as I am going offline now due to the late hour, thanks

Customer: replied 1 year ago.

I have never had a contract with ***** ***** so have never saw the actual wording within it. None of my colleagues were able to enlighten me to this either as none of them had ever implemented this before.

They offered me a holiday at a discounted price in good faith and I paid the asking price also in good faith. I could not forsee at the time of booking that I would leave their employment 14 months later.

There is apparently a clause in the contract as I was advised of this by HR in the letter I received however, myself nor none of my previous colleagues had ever been made aware if this when booking a discounted holiday or have actually seen the wording if this.

The discount was for £800. There is no way I have this kind of money to repay them. A travel consultant's salary is very low and it is only discounted holidays that subsidise this. I only had this 1 discount in that year.

Customer: replied 1 year ago.

Relist: Other. He is in America and I think I would be better with a UK solicitor. Also it was to late for him to answer last night I am needing help now Dont know if I have wasted my money or should wait for Ben I am now willing to pay another £38

Hope soneone can get back to me Thanks

Expert:  Ben Jones replied 1 year ago.
Hello I am not in the US I am a UK solicitor hence why it was too late last night. I would have answered the query in good time if tun had responded then but you took over 30 mins to respond to my initial question and by then I was already going offline. I am still happy to help you but please bear in mind that we are all practising lawyers so cannot guarantee that you can get an immediate response as we may be in court, seeing clients, etc. So if you still want me to continue please let me know and I will get my response ready this morning. Thanks
Customer: replied 1 year ago.

Sorry I was having difficulties with the site last night. Yes I would be happy for you to continue, thank you. The time on the messages was showing up in USA time! I do realise that it was late last night and thank you for getting back to me! Sorry again suppose I'm just a but suspicious never havinh used these kind of sites. Would appreciate you looking at this snd getting back to me Thanks

Expert:  Ben Jones replied 1 year ago.
The site origi9nates in the USA but we are UK lawyers who deal with UK customers. Anyway, sorry for the confusion I am on it and will respond fully this morning, thanks
Customer: replied 1 year ago.

5 star

Expert:  Ben Jones replied 1 year ago.
Good morning, the starting point here is what contract you had in place and hat its terms were. If you were employed under a specific contract and in it there was a clause which stated that you would have to repay any part of a subsidised holiday should you leave at the time the holiday was due or a set time before/after, then you may indeed be liable for this. However, as mentioned, that is only the starting point. Relevant factors which would come into play include the following:
• Were you actually issued with a copy of the contract in question? For the clause to be binding you must have actually been in possession of the contract and had the opportunity to see the clause. It is no good for the employer to claim that you are bound by a specific clause if you we never given the opportunity to see that clause and consider how it may affect you
• Has that clause been applied in the past or has there been an obvious practice of not applying it to the workforce. This is something called custom and practice and I will discuss it in more detail below:
This is a principle in employment law where terms may become implied into an employment contract by ‘custom and practice’. This makes them contractually binding even if they are not written down anywhere. This area of law is rather complex and it is usually only down to the courts to establish with certainty if something had become an implied term. Nevertheless, it does not prevent employees from directly raising this argument with their employers.
The basic requirement for implying terms is the presumed intention of the parties, in other words - did the employer and employee intend for the terms in question to be treated as contractual. In general, a practice would need to have been clearly communicated and consistently applied for a substantial period of time before it can be considered an implied contractual term. Therefore, something that is uncertain, not communicated properly, not been applied consistently or has just been around for a few months is unlikely to qualify.
Case law has suggested that the following are important factors when considering whether a term has become implied in a contract:
• On how many occasions, and over how long a period, the terms in question have been applied - the more times they have been applied and the longer the period over which this has occurred, the stronger the argument they had become implied into the contract
• Whether the terms are always the same - large differences will make the argument they had become implied weaker
• The extent to which the terms are publicised generally - there must be widespread knowledge and understanding amongst the workforce that such terms were being applied
So in your case you would be arguing that even though this clause may have been in existence, it was never applied to anyone in the past and as such it has become an implied contractual term that it would not be applied. You may tell the employer that you believe the term or practice you are relying on has been implied into the contract through 'custom and practice' and see what they say.
Finally, you need to consider what the employer can do about this issue. They may ask you to voluntarily repay the money but you could refuse, using the above arguments to support your position. If they do not agree with you, then the only option they have is to take you to the small claims court to pursue this money. I am not sure a huge company like Thomson would do this. They would not want the adverse publicity and it would be too much hassle to issue court proceedings to pursue an amount of £800, which for them is just a tiny drop in the ocean. So whilst they may try and put pressure on you now, when it comes to the crunch of whether take this further to court, I am not certain they will and you would not have to be forced to pay this money back. Of course only time will tell but in the meantime I suggest you raise the above arguments as reasons why you should not be asked to pay them and see how far they take this. As mentioned, hopefully they will just let this go in the end, rather than issuing a court claim, which would not be in their best interests.
I trust this has answered your query. I would be grateful if you could please take a second to update your 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
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