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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50206
Experience:  Qualified Employment Solicitor
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I have been employed in a prison for 9 years as a teacher on

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I have been employed in a prison for 9 years as a teacher on an hourly paid/variable hours/sessional contract. We were TUPE'd over from an FE college to a private company in Nov 2012.
I requested 4 weeks leave ( as a sessional worker I am not paid when on leave). I received a letter saying this could not be authorised and I would be technically making myself unavailable for work.There would be no guarantee that hours would be returned if I came back AND if I return I would have to accept the company's terms and conditions which are less beneficial ( e.g. no sick pay) than my current contract. I work 4 days a week.
Another colleague has had the same response.
I have taken 4 weeks leave every year for the past 6 years to teach on a university summer school.However no formal agreement about this.
It is apparent that the company wants to get rid of staff on the old college ( more expensive ) contracts and employ staff on their own less generous contracts.
My question is :
A/ Is the company within its rights to do this?
B/ I will have to resign to take my four weeks - is this a case of constructive dismissal ? I do not want to embark on the tribunal route unless I have a strong chance of success.
Thanks
I work 4 days per work
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Did your old contract (which transferred to the new employer) have any provisions for taking holidays?

Customer:

I don't understand. I submitted my question to taratill based on her previous replies.

Customer:

I was expecting reply from taratill. I understood we could select advisor

Ben Jones :

My colleague is not online at present and has not been here at all today. After a while the question gets opened to all other professionals. I specialise in employment law so am more than happy to assist you with your query

Customer:

Not satisfied. It said on the profile she was online ... rather misleading

Ben Jones :

I am sorry I cannot do anything about that, all I did was pick up your question which was opened to everybody because it had not been answered. Does it matter who deals with it though - we are all qualified lawyers and you are now dealing with someone who specialises in the field you need an answer in

Customer:

OK no offence I just found her responses to other queries more incisive and clear.

Ben Jones :

I understand but the law is the law regardless of who you get an answer from - you will not get a more favourable response by asking for a specific person

Customer:

Ok point taken

Customer:

Re ; college contract - it has 5 clauses about holidays - it says 40 days pro rata- references to bank holidays and that ' annual leave must be taken outside contracted hours of work' - this was a standard college contract - as a prison we don't close for summer holidays etc, - just a few days at Easter and Christmas

Ben Jones :

Ok thank you. The law in this regard is that under the Working Time Regulations 1998 an employer has the right to refuse an employee’s request for annual leave as long as the required notice periods in that respect are given. First of all the employee must give the employer notice that is at least twice as long as the holiday to be taken. So for example if you wanted to take 20 days’ leave, you must give the employer at least 40 days’ notice for your request to be valid. If the employer then wanted to reject your request to take that leave then must give you notice that is at least as long as the leave to be taken. In the same example they can reject your request at any point up to 20 days before it was due to be taken. No reason is needed by them and all they have to do is adhere to these notice periods. So the employer is legally able to refuse your request for leave if they have satisfied the notice conditions set out above. Assuming they have done so, their actions would be entirely legal and you cannot claim constructive dismissal if you are forced to leave in order to take the leave you are after. However, you do not have to actually resign to take the holidays, you could still go and remain an employee – it would then be up to them to decide how to deal with that, for example by taking disciplinary action against you for unauthorised absence from work.


Customer:

Thanks -

Customer:

My key query relates to their statement that if I did return I would have to accept the company's terms and conditions

Customer:

I was also reluctant to have on my record disciplinary action.

Customer:

So you're saying that in law I am not been forced to resign (or face disciplinary action)and therefore no question of constructive dismissal.;

Customer:

The fact that I have taken this leave for 5 years ( no formal agreement) I guess that makes no difference

Ben Jones :

Well no, they cannot do that. If you went off on leave even if not authorised you continue to be their employee so you are not terminating your employment unless you formally resign first. If you do so and then try to return they can offer you any contract they want and it is up to you to them decide whether to accept it or not. Same applies if they seek to terminate your employment and then offer you re-engagement – they can offer any terms they want. But assuming your employment has not been terminated, either by you or them, they cannot force you to accept the changes and if they force them through then it could amount to a breach of contract on their part. They could still take disciplinary action for any unauthorised absence but at the same time you could also claim constructive dismissal but only if you are forced to accept these new terms when no termination had occurred beforehand.

The fact you have taken the leave previously does not overrule the statutory position, which in this case allows the employer to reject your leave as per the conditions above.

Ben Jones :

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

ok thanks for that - but i assume they will terminate employment due to unauthorised absence ( so called)

Customer:

Still its useful to know that there is no point in pursuing constructive dismissal.

Customer:

Tried to give rating but message pops up saying Your Expert has not Finished....

Ben Jones :

Apologies for that, there is a bug in the system which we sometimes get and it prevents you from posting your rating. Instead, you can just type your selection on here (e.g. OK, Good, Excellent) then we will process it manually later. Thank you

Customer:

Good

Ben Jones :

Many thanks, ***** ***** best

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