Holiday Pay and Rights

nikebee · 28 Jan 2008 at 00:50

Looking for some advice for my other half here.

She's manageress of a restaurant where we live, but it's been closed for just under a month now. Apparently it was supposed to have refurbishments done to it, but it has been found to be a load of old crap really.

The new owner basically has the intent of closing the place down and turning it into a gambling place (it's a long story.)

She's been temping in other places, doing bar work and helping out here and there to get some cash and keep herself busy.

The problem is though, is that the people that own the restaurant are taking this time that the restaurant closed as a forced holiday - and for the past three weeks my girlfriends pay has been coming out of her entitled four weeks holiday pay.

Next week will be her last pay cheque from them by what they say. Simply because her entitled holiday pay will have run out. So times will be hard as I'll be the only one bringing cash into the home, and my wage alone will just about cover our bills/food.

As I said, she's a manageress and has a contract with them.

They're not sacking her, or any of the staff for that matter.
But can they legally stop paying her and force her to take this out of her holiday pay?

Can they force her to take this as a holiday?

Anyone that can offer some decent advice and hopefully clear a few things up will be greatly appreciated as we're pretty lost on this matter (and pretty worried about the money issues it could cause, as I'm sure you'd appreciate.)

Cupra · 28 Jan 2008 at 02:05

i dont think she can be forced to take it as a holiday unless it states in her contract she could be told when she can take holidays

Deadly Ferret · 28 Jan 2008 at 03:08

Is she salaried or on wages?

If the former, then she probably has a right to protest. If the latter, then there's still a possibility of rights, but look at it this way: the alternative to holiday pay would have been to receive no wages for the 'downtime'...

Will she still be manager after the works are completed, and does she want to be? If yes & yes, my advice is to tolerate it without complaint.

Regardless of what her rights about the holiday pay matter are, bear in mind that if the employers think it's too much hassle dealing with any complaints made, then now i.e. before the launch of the new business model, would be the ideal time to replace her. The changing nature of the business would also provide the perfect excuse to lay her off...

gavinpoo · 28 Jan 2008 at 03:55

Legally your employer can control when you take your holiday so can't really complain about being forced to take the time out of your entitlement. However, since the 1st October 2007 the minimum holiday entitlement has been increased from 4 weeks to 4.8 weeks so would certainly make sure to get that extra four days (assuming a 5 day week).

http://www.direct.gov.uk/en/Employment/Employees/WorkingHoursAndTimeOff/DG_10029788

tres · 28 Jan 2008 at 09:07

is it in her contract that she was due to go without wages during certain times?
most contracts state an amount of hours to be worked per week, for which she'd get a salary or hourly rate - but don't say that if hours aren't available, you won't get paid.

nikebee · 28 Jan 2008 at 09:51

Hi guys, thanks for the help so far.

I'm pretty sure her contract states she should be working a minimum of 40 hours per week. She's not paid a salary and realistically the hours can be a little less or a lot more than 40 hours.

She's been working there for around 4 years or so now, but the trouble has only started since the new owner came in. As I said, it's pretty well believed that he only bought the business for the property it's in so he can run it into the ground and turn it into something else.

I was under the impression you were to be told a set amount of time in advance before you can be layed off, and I presumed that was the case with 'forced' holidays?

Thanks for the link gavinpoo, I'll give that a read through - I was trying to find a link like that last night actually.

Realistically she wants to leave, but it's not that easy. Getting a well paid job around this area is no easy feat, so we both know she's pretty much stuck there until something good crops up. We live in an area predominantly dominated by seasonal work as we're pretty much a holiday town - so this really couldn't have come at a worse time.

Thanks again.

I guess we're both just hoping that she can't be forced to take this out of her leave because of her contract stating she should be working 40 hours per week... since in about a week or so she'll have no holiday left... which a) puts a dent in any holidays we had plans the end of the year and most importantly b) she wont be paid again until she finds herself another job or the place reopens.

Cheers

tres · 28 Jan 2008 at 11:36

once her holiday has run out, they have to give her the hours that it says in the contract.

Sonea Fifer · 28 Jan 2008 at 11:47

gavinpoo said:
Legally your employer can control when you take your holiday http://www.direct.gov.uk/en/Employment/Employees/WorkingHoursAndTimeOff/DG_10029788

I'd been wondering about this too - we have a computer system at my work where we apply for our holiday the system then works out the amount of people off on that day/days and decides whether you get you holiday or not. I've seen a few people refused holidays with weeks of notice simply because they've already over allocated that day ! :eek:

It's never really effected me since i've been working for this company but the way i see it as am giving my employer sufficient notice to take a holiday am entitled to - if they've not got enough cover then thats not my problem nor my responsibility and am not about to be penalised for it - so it would be a case of **** you am taking my holiday !

Thanks for the link though Gav - very useful

Kell_ee001 · 28 Jan 2008 at 11:53

I would suggest she spoke to the CAB and get their advice on what rights she has just incase this carries on much longer.

nikebee · 28 Jan 2008 at 12:02

Jesmond said:
I would suggest she spoke to the CAB and get their advice on what rights she has just incase this carries on much longer.

Oddly enough I was just about to post that she's just come back from a meeting with them

She's been informed that since she has been working there for 4 (or so) years her employer is required by law to give her notice around 4-5 weeks in advance before forcing her to take leave.

The CAB have told her that since she has taken these last weeks as a holiday she can't get them back, regaurdless of the situation (which is slightly annoying).

However the upside to this is that the CAB have said the employer will have to pay her the past 4 weeks in full as "damages" for what they have done. The 4 weeks pay must be paid back to her without tax or national insurance apparently.

Deadly Ferret · 28 Jan 2008 at 13:06

trescodrucey said:
once her holiday has run out, they have to give her the hours that it says in the contract.

I can't be certain, but I think you're wrong on that. I remember from my training that there are times when waged staff aren't needed, and they just have to lump it without pay.

nikebee said:
She's been informed that since she has been working there for 4 (or so) years her employer is required by law to give her notice around 4-5 weeks in advance before forcing her to take leave.

By "leave" do they mean holiday pay or unwaged time off? Again I can't be certain, but I think that businesses are allowed to have their premises undergo refurbisment without notice to the staff.

When a pub I was running was closed for five days to be refurbished, I received a normal month's pay due to being salaried, but all the other staff found out about a week beforehand (when I found out) that there simply wouldn't be any shifts for them during that time. They were given the option of taking holiday pay, but those who didn't simply received no money. The way it was handled was how all two thousand pubs in the company handled it, so it must have involved legal consultation at some stage...

tres · 28 Jan 2008 at 13:32

Deadly Ferret said:
I can't be certain, but I think you're wrong on that. I remember from my training that there are times when waged staff aren't needed, and they just have to lump it without pay.

It's all to do with contract wording
We researched it quite a bit, in the large majority of cases they don't specify that there may be times when work ISNT available, and as a result the OP would have a case against them

Deadly Ferret said:
When a pub I was running was closed for five days to be refurbished, I received a normal month's pay due to being salaried, but all the other staff found out about a week beforehand (when I found out) that there simply wouldn't be any shifts for them during that time. They were given the option of taking holiday pay, but those who didn't simply received no money. The way it was handled was how all two thousand pubs in the company handled it, so it must have involved legal consultation at some stage...

That sounds like salaried staff had a fixed monthly amount not dependent on hours, and weekly paid staff had the hour clause in their contract