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Ben Jones
Ben Jones, UK Lawyer
Category: Scots Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I am having difficulty at work regarding my annual leave

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Hi,
I am having difficulty at work regarding my annual leave and pay. This is the extract from my contract which is to do with what I am talking about.
"The Employer's holiday year runs from 1st of April to 31st of March. Your Holiday entitlement shall accrue on a pro rata basis during the holiday year by reference to a full time entitlement of 5.6 weeks paid holiday (inclusive of any Bank or Public Holidays) during each holiday year.
Your holidays shall be taken at times agreed in advance by the Case Manager. You must give the Case Manager at least 2 weeks' notice of all holidays. For the avoidance of doubt one week's holiday is deemed to be the number of average weekly hours calculated in accordance with the Employments Rights Act 1996 by reference to a 12 week reference period.
The Employer reserves the right at its absolute discretion to refuse a request for holiday to be taken at a particular time where inadequate or unreasonable notice is given, or if the time chosen is inconvenient to the needs of the Client. In addition the Employer reserves the right to request that you take holidays at a time suitable for the Clients needs. If the client goes on holiday or is subject to a Period Away for any reason and you are not required to accompany him, you may be required to take annual leave for all or part of the period that the client is on holiday or for the Period Away up to 1 week per annual leave year. In most other circumstances, not more than two weeks holiday may be taken consecutively."
I have worked in my current employment for 2 years but in January 2015 I tupe'd to a new company. I have a contract for 16 hours per week. Before the tupe the way we worked annual leave was that I was required to take 1 week of annual leave at the same time as the client and I was free to take the rest of my annual leave through the year. If the client went on holiday or canceled days which would fall under my contractual 16 hours a week at anytime through the year I still got paid.
The issue I am now having is my new employer has told me that if I do not take annual leave when my client goes on holiday I will go unpaid, "Having spoken to HR if you do not request annual leave when the client is on annual leave you will be unpaid." at this point I have already taken two weeks of annual leave at the same time as the client and 1.5 weeks out with the client going on holiday. The client potentially could go on holiday for 6 weeks or more in a year which would be more than the 5.6 weeks entitlement i have in a year.
When we tupe'd over we were told that everything would stay the same and I expected that would mean our previous way of working the annual leave would be the same. Any assistance would be very much appreciated. I am waiting on my union getting back to me but have not heard from them in 4 days.
I hope this makes sense and if there are any questions you need answered I will respond promptly.
Submitted: 1 year ago.
Category: Scots 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 have contractually guaranteed house of work when not on holiday?
Customer: replied 1 year ago.

I am sorry I am not very sure what you mean.

I have a a contract guaranteeing 16 hours a week. When I was with my previous employer before the tupe they occasionally would organise training on days the client was away but more often than not nothing would be organised an we would just have a paid day off.

I hope that answered your question

Expert:  Ben Jones replied 1 year ago.
Thank you for your response. I will review the relevant information and will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Expert:  Ben Jones replied 1 year ago.
Many thanks for your patience. The legal position in this case is as follows:
Under law (The Working Time Regulations 1998) an employer can force an employee to take their annual leave on dates selected by the employer and they could also refuse the employee’s request to take certain days off. It means that the employer could have complete control over when the employee takes their holidays throughout the holiday year. This is also reflected in your contract in the clauses you have provided.
So the employer could force you to take your holidays at a time when the client is away and they must give you notice which is at least twice as long as the holiday to be taken So if you are forced to take a week’s holiday with the client they must tell you of this at least 2 weeks before that s due to happen. So in effect all of you holiday allowance could be used up at a time when the employer requires it and it could match the days when the client is away.
However, if you have used up all of your holiday allowance, whether by making your own requests which were approved or by being forced to by the employer, they cannot then send you on unpaid leave if they require you to take more time off. Doing so would amount to breach of contract because outside of your holiday allowance you are still contracted to 16 hours per week and the employer must adhere to this.
So in summary they can force you to take up all of our holidays at a time of their choosing but once your annual holiday allowance has been used up, they cannot force you to take further unpaid leave as that would amount to breach of contract and unlawful deduction of wages.
If the employer tries to do so, the first step is to raise a grievance. In order to try and resolve this afterwards, 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-tribunals
2. 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: www.moneyclaim.gov.uk.
Hopefully 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.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive 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
Customer: replied 1 year ago.

Hi,

Thanks a lot for your response.

I was wondering if you could please clarify/advise me on a couple of things.



  1. If I put in my annual leave request at the start of the annual leave year how much time does my employer have to accept or deny my request?

  2. If the employer does approve my annual leave request at the start of the annual leave year can the employer cancel the annual leave if the client decides to go on holidays that don't coincide with mine?

  3. Does it make a difference with this situation that the accepted working practice of my previous employer was that I had to only take one week of annual leave at the same time as my client and I was free to take the rest at a time of my choosing. Bearing in mind I was told everything would stay the same after the tupe and that the only difference was going to be I would have a different employer. Can the new employer just change this previous practice as they have a different interpretation in the contract?

  4. I was also wondering if you could explain why in the contract it mentions the one week in relation to annual leave? "...for any reason and you are not required to accompany him, you may be required to take annual leave for all or part of the period that the client is on holiday or for the period away up yo 1 week per annual leave year."

  5. If my employer is allowed to stipulate my annual leave should they give me some kind of time frame in a year when I could plan to take annual leave. For example if I wanted to go abroad for a holiday I would have to book months in advance but in your previous response you intimated I could legally only be given double the amount of time the client was going away for as notice. That would not be a lot of time to plan or organise a holiday.

  6. I have already had 1.5 weeks of annual leave out with the client going away on holiday, should the employer have told me that annual leave should be worked in the manner that they are now saying it should be.


I hope these make sense, I am just wanting to make sure I fully understand what right and wrong.

Thanks a lot for your help.

Expert:  Ben Jones replied 1 year ago.
Hello, to answer your queries: 1. If I put in my annual leave request at the start of the annual leave year how much time does my employer have to accept or deny my request? They can accept it at any time, even as far as the day before it is due to be taken, However, if they were rejecting it then they must give you notice which is at least as long as the leave requested. So for a week’s holiday they must reject it at least a week before it is due. 2. If the employer does approve my annual leave request at the start of the annual leave year can the employer cancel the annual leave if the client decides to go on holidays that don't coincide with mine? Ye they can but the notice period must be at least twice as long as the leave t be taken, So for a week’s holiday, they must tell you at least 2 weeks beforehand. 3. Does it make a difference with this situation that the accepted working practice of my previous employer was that I had to only take one week of annual leave at the same time as my client and I was free to take the rest at a time of my choosing. Bearing in mind I was told everything would stay the same after the tupe and that the only difference was going to be I would have a different employer. Can the new employer just change this previous practice as they have a different interpretation in the contract?3.It does not really matter to be honest because the right to reject or stipulate when leave is taken is a legal right given by statute so it would take precedence over any agreement you may have had. 4. I was also wondering if you could explain why in the contract it mentions the one week in relation to annual leave? "...for any reason and you are not required to accompany him, you may be required to take annual leave for all or part of the period that the client is on holiday or for the period away up you 1 week per annual leave year." I am not sure why they have included that but as mentioned they can decide when you take all if your annual leave so they could force you to take it at other times even if it coincides with the client’s leave and means you take all of your leave to correspond with that of the client’s. 5. If my employer is allowed to stipulate my annual leave should they give me some kind of time frame in a year when I could plan to take annual leave. For example if I wanted to go abroad for a holiday I would have to book months in advance but in your previous response you intimated I could legally only be given double the amount of time the client was going away for as notice. That would not be a lot of time to plan or organise a holiday. I agree it would not be a lot of time but that is how the law works. Most employers would not act so unreasonably as to leave it to the minimum notice period required to let you know but you do get the odd rotten apple here and there which may be difficult to deal with. Morally it may be questionable but it is not illegal. 6. I have already had 1.5 weeks of annual leave out with the client going away on holiday, should the employer have told me that annual leave should be worked in the manner that they are now saying it should be. No that would not have been necessary. 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
Ben Jones, UK Lawyer
Category: Scots Law
Satisfied Customers: 46196
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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