Contractual issues

gitbags · 25 Jun 2014 at 10:02

So it turns out my boss only has his best interests at heart (shock, horror

).
A little background, I work in a seasonal town for a business that relies on tourism from Easter through to October. A colleague of mine has recently handed in his notice after 7 years service and my boss has hit him with a bill for holiday pay.

Turns out our contracts are set in such a way that we owe him money if we leave during the busy period. Now I understand he has the right to recover any overpaid wages but can he legally do so if he places constraints on our holiday that we have little to no control over?

I understand the clause below is pretty standard for low income postions:

9.3 The holiday year is the calender year from 1st of October to 30th September and you should take your holidays during this period. You will not be permitted to carry over unused holiday entitlement into a following year except with express written consent of the employer. You will not be entitled to to payment for any unused holiday entitlement.

But, when you combine that with the fact our contracts run from the 1st of march to the end of February each year and this piece below:

9.4 Due to the seasonal nature of the business, holidays can only be taken during the period mid October to mid March.

It means any holiday we don't take we lose, but if we take a full years entitlement and leave mid season we owe him money.
I understand this can be avoided by not taking holiday but that seems a little unfair when you've worked 6 days a week for 7 months solid. But what gets me is each year he tells us we have 28 days holiday we have to take, if we don't book it he'll lump a day in here or there on our days off to make sure we use our entitlement! :rolleyes:

So I guess what I'm asking here is can he legally peruse us for holiday pay if he has been willfully lying to staff about how much holiday we have, during the period we're allowed to take it and booking it for us if we don't take it?

Colbaker · 25 Jun 2014 at 10:36

So he "tells" you that you have 28 days holiday a year? is this written in your contract of employment?

Actually that is the legal minimum that is required 20 days annual leave and 8 days Bank holidays, He can dictate when you take your holidays and also if you leave early he can also deduct used holidays if you have not worked enough time to accrue the amount you have taken, For instance i earn 2.03 days holiday each month worked, If i take all of my holiday in the first 3 months then i have only accrued 6.06 days so if i leave i will owe back any extra than that taken.

Rich_L · 25 Jun 2014 at 10:44

You will not be entitled to to payment for any unused holiday entitlement.

Pretty sure that only applies to transferring holiday from one year to the next, if you leave part-way through the year the employer has to pay accumulated holiday pay as far as I know. Could be wrong though.

It's pretty standard to reclaim holiday pay which is paid in advance of earning it pro-rata though.

gitbags · 25 Jun 2014 at 10:45

He tells us in person we have 28 days owing to us, but the wording on our contract is;

You are entitled to 5.6 weeks paid holiday each year pro rata, rising according to government legislation.

So he can dictate when we can have holiday, surely he cant just take it on himself to issue holiday if we haven't accrued it?

Colbaker · 25 Jun 2014 at 10:47

Rich_L said:
Pretty sure that only applies to transferring holiday from one year to the next, if you leave part-way through the year the employer has to pay accumulated holiday pay as far as I know. Could be wrong though.

Yes, If you leave then they have to pay any holiday that you have not taken but accrued, The same goes when you leave but have taken more holiday than you have accrued then owe it back to them.

You are fully entitled to take all of your 28 days and your employer should allow for this.

MooMoo444 · 25 Jun 2014 at 10:58

gitbags said:
It means any holiday we don't take we loose

gitbags said:
we loose

gitbags · 25 Jun 2014 at 11:03

MooMoo444 said:
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Bugger

Pestilence · 25 Jun 2014 at 11:38

Wait... hold on. Are you saying that your employer has logged you or your colleague down as "on holiday" on NORMAL days off so that it doesn't look on the books like you're not getting to take your proper allowance, and then expecting payment back for said 'holiday' days due to leaving?

gitbags · 25 Jun 2014 at 11:41

So the gist is although it causes issues with how and when we take holiday, its all above board?

gitbags · 25 Jun 2014 at 11:46

Pestilence said:
Wait... hold on. Are you saying that your employer has logged you or your colleague down as "on holiday" on NORMAL days off so that it doesn't look on the books like you're not getting to take your proper allowance, and then expecting payment back for said 'holiday' days due to leaving?

What he'll do is reduce your working week by one or more days and issue that day as a holiday day. Last year he attempted to give me 15 days holiday through December (random days not one long holiday) using this method, when I called him on it he back tracked and claimed I'd told him I wanted as much time off over December as possible.

Edit: We receive holiday pay for it, we just don't book it.

Haggisman · 25 Jun 2014 at 12:07

gitbags said:
What he'll do is reduce your working week by one or more days and issue that day as a holiday day. Last year he attempted to give me 15 days holiday through December (random days not one long holiday) using this method, when I called him on it he back tracked and claimed I'd told him I wanted as much time off over December as possible.

Edit: We receive holiday pay for it, we just don't book it.

So he pays you for days you would normally have off anyway because he logs them as holiday. E.g. the same as if someone on a normal work week got paid for a couple of weekends?

gitbags · 25 Jun 2014 at 12:29

Not quite due to the lack of a set working week, staffs winter hours are dictated by who's on holiday. If there isn't enough staff on holiday he'll pick whoever has got the most holiday left to have a day or two off extra in that week.
You don't tend to find out if you've been put on a holiday till you get paid. Mainly due to the fact he's rarely there through the winter to tell you what he's done.

cheesyboy · 25 Jun 2014 at 12:33

In theory, this is fine - you would have taken more holiday than you had accrued so employer is entitled to claim it back. But your last few posts on him dictating holiday might be a bit more shaky, if there are no explicit contract terms allowing it.

gitbags · 25 Jun 2014 at 12:57

cheesyboy said:
In theory, this is fine - you would have taken more holiday than you had accrued so employer is entitled to claim it back. But your last few posts on him dictating holiday might be a bit more shaky, if there are no explicit contract terms allowing it.

Unfortunately there is. From what we've learned at work, our contract is arranged in such away that if we take 28 days during the set period of october to march as we are instructed to, else we lose what we would have accrued during the summer period, we owe him holiday pay should we leave during the summer period. Yet if we leave when all has gone quiet in the winter we might be owed holiday.

He's arranged it like this to use as leverage should you wish to leave when he's making money. :rolleyes:

I was just hoping there was enough of a loop hole for my colleague to argue the toss, seems not.

cheesyboy · 25 Jun 2014 at 13:06

gitbags said:
Unfortunately there is. From what we've learned at work, our contract is arranged in such away that if we take 28 days during the set period of october to march as we are instructed to, else we lose what we would have accrued during the summer period, we owe him holiday pay should we leave during the summer period. Yet if we leave when all has gone quiet in the winter we might be owed holiday.

Yeah, that bit is all fine. Where it gets shaky for me is where he's allocating you your holiday based upon his requirement for you to work. Is he allowed to dictate holidays to that extent? Without explicit contract terms, I'm not sure he is.

This bit;

gitbags said:
Not quite due to the lack of a set working week, staffs winter hours are dictated by who's on holiday. If there isn't enough staff on holiday he'll pick whoever has got the most holiday left to have a day or two off extra in that week.
You don't tend to find out if you've been put on a holiday till you get paid. Mainly due to the fact he's rarely there through the winter to tell you what he's done.

gitbags · 25 Jun 2014 at 13:15

cheesyboy said:
Yeah, that bit is all fine. Where it gets shaky for me is where he's allocating you your holiday based upon his requirement for you to work. Is he allowed to dictate holidays to that extent? Without explicit contract terms, I'm not sure he is.

This bit;

That bit.... No, nothing contractual about that. He just does it to make sure no one has any holiday entitlement left come Easter. Although the issue there is proving he's done it, he'd just claim you'd asked for it or it was a misunderstanding.

Pestilence · 25 Jun 2014 at 13:19

It doesn't sound like there's a whole lot that can be done about it. Technicially speaking, business needs can dictate when you can take annual leave. The other bit about him just playing 'holiday master' and dishing them out as he sees fit would probably just devolve to a useless shouting match about who asked for what and blah blah blah.

What he's doing sounds like it's just above board, but equally it sounds to me like an horrendous way to work.