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Notice and time off in lieu... can I ask for TOIL to be paid?

8 replies

lucy101101 · 07/04/2019 11:31

I just had to give up a job I enjoyed as (and I am sure this is a common story....) I was employed part-time but the job turned out to have been full time until I started (and done by the person who hired me...) with no apparent changes to it! Hence I found myself working more and more hours... and in fact days...

I had a number of meetings with my manager to address this... but apparently "it didn't work for them" to change or reduce the workload. I was still on probation - just - so handed in my notice which was only a few weeks.

However, on pointing out that I had some holiday pay owed and documented (by my actual work diary and email records which I have saved) that I had done multiple days more than I was employed.... they have only agreed to honor a fraction of the amount of TOIL.

My contract does state that I should have TOIL... but the TOIL is in excess of my notice.

My question is... can I pursue them for extra payment for the TOIL? Is it worth legally challenging them?

It's very annoying as I know I was doing a very good job... but it just wasn't sustainable as I have a child with SEN amongst other issues hence pursing part-time in the first place... any advice would be gratefully received!

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ScreamingValenta · 07/04/2019 11:37

What reason have they given for not honouring the full amount of TOIL?

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lucy101101 · 07/04/2019 11:41

Hi there and thanks so much for replying. They haven't given any reason at all apart from "they estimate it as xxx" which is obviously much, much less than my emails and diary shows. I have told them I have records but they haven't seem them. They have behaved pretty badly in other ways since I handed in my notice in so it seems to have been the right decision....

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ScreamingValenta · 07/04/2019 11:45

Have you tried sending them a copy your own records? You could threaten them with the Small Claims Court if they won't honour it (assuming the amount claimed would be within the limit for a small claim). I'm not a legal expert so I don't know how robust your case would be, but just the threat of taking it further may galvanise them into action because they probably wouldn't want the hassle.

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lucy101101 · 07/04/2019 11:49

That's a good idea. I think I need to show them my records and highlight the TOIL... I guess I am just not sure if TOIL has to be honored in the event of handing in notice if it exceeds the notice period.

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ScreamingValenta · 07/04/2019 11:57

It should say in your contract if TOIL is to be forfeited in those circumstances. If there's nothing to say that, the principle should stand that you should be compensated for the hours you have completed.

Format records showing your TOIL clearly and, if you can, annotate it with what the TOIL was used for, e.g. if you had to work extra hours to attend a meeting or complete a specific piece of work or cover for someone's absence.

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flowery · 07/04/2019 12:19

What does the TOIL policy actually say? TOIL is usually pretty restricted.

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daisychain01 · 07/04/2019 15:29

IME companies operating flexi / TOIL use a tracking system (often electronic) to capture clocked hours ongoing, as this supports the contractual obligation to honour the TOIL. Furthermore, once it gets into the realms of ££ reimbursement, it becomes overtime, which is a different basis altogether.

It sounds like it has become your word against theirs, unless you sent your manager an ongoing statement of extra hours done and they confirmed back by email they approved it.

How much actual money is involved - ie what is the £value difference between their records and yours? Think about the stress and hassle of taking them to court and whether that £ difference is significant enough for whats involved.

If they are willing to reimbursement you some of the TOIL then you may take the view "something is better than nothing" and draw a line in the sand.

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lucy101101 · 07/04/2019 18:44

Thanks everyone. I do want to pursue it as I think they should never have offered the job as part time... and I believe they have effectively had the same work (or better...) for little more than half the cost and don't want them to do the same to someone else who wouldn't be able to walk away.

It isn't somewhere that has a clocking in and out (although they do have security cameras) but both my manager and other members of management had access to my online diary... and kept putting more and more work and meetings in that diary!

There is nothing in my contract about whether TOIL will be forfeited in the case of notice.