HR advice please

[Courtnay]

I work for a business.
For the past 4 years, I have known that my annual leave has been miscalculated and I have been given less than I am entitled to.
I raised this with the then manager 4 years ago. I stated that my AL calculations were wrong and told him what I had calculated they should be. He told me I was wrong and he had calculated them correctly. I knew hd was wrong. I raised this with him several times over, face to face, and each time he told me I was wrong. He became frustrated with me and made this clear to me, even getting blatantly exasperated with me, and eventually this made me stop raising it with him. We don't have an internal HR department. The business uses an external one that they pay for, and only the manager can access it. As an employee, I don't even know what the HR company is called, or where it's based or how to get in contact with them - we aren't told.
1 year ago that manager left, and I immediately went to talk to the new manager. She told me she was aware of me raising the issue of my AL hours and that the previous manager had told her I was wrong and that he had confirmed to her that I was on the correct AL entitlement, and she told me she had nothing further to add because he had told her there was nothing to correct re my AL entitlement.
I raised it with her again a few months later, and again she referred to the previous manager's statement that my AL was correct and I was not entitled to any extra AL hours.
Fast forward to now, and the current manager has been on an HR course and has learnt that my AL hours are indeed wrong, and that I was right all along, I am on less AL hours than I am entitled to. The previous manager miscalculated my entitlement by 40 hours deficit per year. So I have spent 4 years losing out on 40 hours a year of AL entitlement. The current manager has now fully admitted that my AL was/is wrong, and accepts that the previous manager was wrong in his advice to her about me.
Where I need advice is, my bosses are stating that they are only willing to go back 2 years to recompense me. They will not go back the full 4 years. Yet I've been raising this gor 4 years. They are telling me that HR law states they only have to go back 2 years.
I am really upset about this. I have been told for 4 years that I am wrong. And now they've found out I'm right, they are only willing to give me the AL I'm owed for 2 years, not the full 4 years. I've been told I can take it as AL, or be paid for it (I'd get less after tax/NI) or half and half. Up to me what I choose, but only 2 years will be given to me.
AIBU to find this grossly unfair?
I work really hard in my role. I work through all my unpaid lunchbreaks and never walk out at the time my employed hours stop, I always stay another 30 - 60 minutes late to deal with the workload and I never claim OT for this, and my bosses know this.
Yet they aren't willing to acknowledge their 4 year mistake.
It has left me feeling that my position is untenable as I feel there must be a sheer lack of respect towards me.
But I love my job and don't want to leave.
I feel really upset over this!

Are you certain that for your term-time hours they didn’t wrap your leave entitlement up into your pay? I ask because term-time workers don’t normally take annual leave, because they’re already off 13 weeks a year. Instead their pay is uplifted to account for the pro rata leave entitlement.

Proportionally (based on the 6 weeks you mentioned), it works like this:

Standard M-F workers
46.143 working weeks + 6 weeks leave = 52.143 weeks paid

Term-time
39 working weeks is 84.5% of 46.143, so the leave entitlement is 5.07 weeks (i.e. 84.5% of 6 weeks)
39 working weeks + 5.07 weeks leave = 44.07 weeks paid, albeit the pay is spread equally over 12 months

So the question is, have you been paid for 44 weeks a year, or for 39 weeks a year?

Let them pay you the max and start looking for a new job.

Stop working unpaid overtime - why are you bothered about the unrecognized annual leave and not the hours of free labour you are freely giving?

I think this is a fair.

OP you need to think about what you want and how you get it. So assume you want 4 years backdated annual leave- they’ve said no.

you could contract acas (they’re pretty crap tbh) they’ll give you some advice. They don’t do anything for you.

you could engage an employment lawyer. This will cost even initially, hundreds of pounds.

and what do you want them to do?

Write a formal letter? Lays out your case but is essentially meaningless.

sue them? Very unlikely to be cost effective and highly unlikely you will be able to continue working for them.

realistically, this seems like a suck it up as a bad experience situation.

Her manager has confirmed the annual leave was incorrect though.

important that the word 'limit' really means 'minimum', the company could have (and many (most?)) do have compensation and holiday polices that are much more generous that the statutory minimums.

If you plan on staying can you say you will recover the unpaid holiday over the next 2/3/4 years? They may not be able to give it all in one go but you might get more luck if it’s staggered?

There is generally a 2 year limit to recover money within the employment tribunal.

That's what HR are referring to.

That doesn't mean you cant make a claim via the small claims court.

Although there is a charge to do this, it could still be worth it to fully recover the money.

Its extremely simple to make a small claim, the cost to do this is from £35.

Seems fairly straightforward.

Even that isn’t straightforward- I filed a small claim in January 25 and have a court date for March 26.

plus, how could she realistically continue to work there?

HR exists to protect the employer, always. What I do know is that HR is 90-95% staffed by women, entirely from observation and my work having used several HR companies over the years.

Its a fair question.

But they've admitted they've not been paying her properly for 4 years. But they dont plan to pay her back in full, because they think they can get away with it. How can she continue to work for them anyway?

OP just make this as difficult as you can - keep saying you can’t accept it put forward various proposals such as spread it over a few years going forward, split the difference. If you can’t reach agreement, let your manager know that you are very disappointed and that if you now know there is no good will or flex on their side you will now treat your role as an employee with a similar approach - work your hours, take your lunch hour and leave on time - you’ll get it back that way even if it’s very slow.

I quite like this idea.

but on the other hand I inherited an employee who had been doing similar for 10 years and didn’t get her anywhere. It is annoying though, so I can see id there was a relatively easy solution someone might give in.

I don't really understand, as in what did your employee do for 10 years? And what do you mean by it didn't get her anywhere? And what is it that's annoying? And what do you mean by someone might give in?

She had an employment dispute that she kept up making irregular complaints about for 10 years. There was no revisiting the decision it related to so she didn’t get anywhere. But she did try, and it was annoying which is basically what the poster is suggesting, you make such a nuisance of yourself continually asking about it that they give in.

I agree that if you are still raising it 10 years from now or bearing a grudge you won't do yourself any favours! It will wreck your relationship with your manager. I think you need to have a few more attempts to have them change their mind, then move on - but in moving on, just do your job, do it well with a smile on your face, but pack up and go on time and take your lunch. I would personally feel let down by them as they are not showing you a lot of good will. I would be looking for another job if that was an option - if not, make the best of it in the knowledge that they will stick to the rules to your disadvantage if they can.

I think I would go down the malicious compliance route if they don’t back down and would be very clear to them that’s what would be happening.
so, manager, to be clear, you are following ‘the law’ and only backdating two years. To be clear, I also will be following ‘the law’ from now on and will be taking my lunch break rather than working through it. Also, we are clear my hours are x-x I will be leaving on time and will no longer be available for unpaid overtime

And in my head I would be saying, ‘so you can take your 2 years back pay and shove it up your arse’ 😂
sorry op, it’s shit, but give them no more of unpaid time, they will regret it

I would take the two years offered because the case law actually says that a break of three months between instances of underpaid leave makes the previous underpaid leave non-claimable. So as you're effectively claiming for annual leave that goes into the summer holidays each year, there's a break of more than 3 months.

I would also agree that you need to look carefully at your contract for the additional hours. Term time workers nearly always have a 'PA pro-rata' contract which gives them a higher hourly rate because their leave is paid over the 12 months. So a 39 week contract is automatically a 44.6 week contract.

No this does not apply to me at all.
I do not get paid a higher hourly rate because of this at all.
And as for not working the 2 extra days over the summer holidays, that time period is for 6 weeks, not 3 months.

I see, thank you for explaining.

Instead their pay is uplifted to account for the pro rata leave entitlement
No, my pay is definitely not uplifted in any way to account for this

So the question is, have you been paid for 44 weeks a year, or for 39 weeks a year?
The extra 2 days a week I work on 39 weeks of the year are paid for those 39 weeks of the year. I do not receive any extra pay for the remaining 13 weeks of the year when I only work 2 days a week. On those 13 weeks, I get paid for the 2 days I work only.

I don't think my company is generous though. They give employees 6 weeks AL a year. Isn't the statutory AL entitlement 5.6 weeks a year anyway?

How much leave have you missed out on?
160 hours of A/L
They say they will give me half of that back, whether I take it as AL or have it paid instead.

Have you asked them if they would pay you for the other 80?
Yes I have. They've said a very clear No.