Redundancy - holiday pay and notice period

[SaintGeorge]

My DH has been given 3 months notice because of redundancy, all above board with the correct consultation periods etc.

He will likely go on 'garden leave' for the last few weeks of this period as there is simply no work for him to do.

His employer wants him to take his remaining 12.5 days annual leave during his 3 month notice period, we would obviously prefer that he was paid for it over and above.

Can his employer force him to take his annual leave?

He has a contract stating that his annual leave is to be taken during 'shut-down' periods (specified as Whit week, 3 weeks in summer, 1 week Christmas) so we think that they may be right about the 4 days for Whit but think it is unfair that they force him to take the other days to suit them, when under normal circumstances it would be totally against the company rules to take holidays outside of 'shut-down'.

Any help/advice gratefully received.

TIA

[SaintGeorge]

teeny bump

[flowerybeanbag]

If he will be sitting at home on garden leave not required to work it is perfectly usual and reasonable to require some of that time to be his remaining holiday. Yes his contract states when his holiday should be taken, and he won't be able to take it at the normal specified times, but that doesn't mean he gets to choose when to take it or elect not to take it at all I'm afraid.

Presumably during his garden leave he is perfectly at liberty to be job hunting and more or less doing whatever he likes anyway?

[SaintGeorge]

Thanks for replying flowery.

They want him to be on call when he is on garden leave - production is stopping but the company will be maintaining a small staff for warranty work - and have told him he will be expected to go in to work immediately if they do call him. So he will certainly be limited to an extent because he needs to be contactable all the time.

Does that mean they need to specify exactly which days he is on 'holiday' and which days are 'garden leave'?

Seems terribly unfair to me that for the last 11 years they have refused point blank to allow more than 4 days holiday between January and July, but when it suits them they can effectively change the rules. Makes a mockery of his contract.

[flowerybeanbag]

Yes they will need to specify which days he is on holiday so that he can go away or do whatever he likes then without having to worry about being contacted.

I actually disagree that it makes a mockery of his contract tbh. The basics of his contract are that he doesn't get to pick when his holidays are, his employers do, and this is consistent with that. It's certainly no less fair that the same thing happening for someone who normally gets to pick all their holiday to take whenever they like.

If his employment is ending and he will have holiday accrued I do think it is reasonable to force him to take it, even though his notice period doesn't necessarily fall within the normal prescribed times for his holiday. Particularly when he's not even likely to have to be working during that time anyway.

[SaintGeorge]

OK, cheers flowery.

I think he has decided to try for a CAB appointment before he speaks to his boss again. He has apparently spoken to someone this afternoon (no idea who, typical vague text from DH ) who said that by the Working Times Directive they can force him to take his holidays with the appropriate notice period (2 x length of holiday) but by having the contract in place the WTD ruling does not apply and instead the stated holidays in the contract must stand.

By which I think he is saying the complete opposite to you and I am just baffled and confused.



Thank you anyway

[flowerybeanbag]

Well it's an interesting point. I would expect a well-drafted contract to provide for the employer to be able to vary the holiday dates when necessary, and I would also expect it to address the issue of what happens in the event of employment being terminated. I am assuming your DH's contract doesn't include either of those clauses?

If he makes that argument suggested by your DH's contact (which might well be worth making) I would expect the employer to say that it is not physically possible for the specified holiday dates to be enforced as your DH will not be employed then, so that contract term can't be relied on. The question then is what happens when the contractual holiday can't be enforced, does the employer or the employee get to decide when holiday owing is actually taken? I think the employer would argue they do and as long as he isn't denied holiday owing to him, imo the WTD would be satisfied.

But that isn't to say it isn't an argument worth making, they may cave in anyway.

[SaintGeorge]

Nope, no additional clauses. The exact wording is:

"Production staff are required to only take annual leave during the factory holiday periods. Exact dates will be published on an annual basis but fixed holidays fall within the following periods:

4 workings days @ Whitsuntide.
15 working days @ Summer (July/August)
3 working days @ Christmas (depending on where Christmas falls)

Employees who by their service have earned additional holidays must take those days by prior agreement of their immediate Manager"

The only mention of termination is when they specify the amount of notice needed to be given by either side.

He has worked there 11 years, but the contract wording has been in place for over 25 years (he has checked with a colleague).

Well drafted it aint!

[flowerybeanbag]

Well as I say, in their position I would probably be arguing that in the event that it is not possible to enforce the contract terms, the WTD provision would then kick in, rather than the employee choosing, but it may well be worth making the argument anyway - he's got nothing to lose.

[SaintGeorge]

Thank you flowery, I shall tell him what you said and leave the ball in his court.

Like you say, worth a shot if nothing else