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!

The time period is 6 weeks but the break between the instances of the 6 weeks you haven't been given holiday for is more than 3 months.

If someone isn't paid the correct leave in January, and then isn't paid correct leave in May, then if they challenge their incorrect leave in July (maximum of 3 months since the last instance if incorrect pay), they can't claim for the January underpayment.

Someone upthread asked me if I work in a school. Can't find the post now. Anyhow, I do not.

• The limitation period to claim backdated holiday pay for underpaid holiday is three months. This means three months from the last underpayment where there was a series of unbroken underpayments (or deductions).
• A series of deductions will be broken if there’s a gap of three months or more between deductions. Once this happens, claims for holiday pay deductions made before that gap cannot be claimed for.
• However, in any event, employees can only backdate their wages claim to include all deductions up to two years (from the date the claim is made), even if the underpaid dates go beyond this.

https://www.marshcommercial.co.uk/articles/how-far-back-can-you-claim-holiday-pay.html

That sound about right re statutory, but the are permitted to provide whatever arrangements, payment or otherwise, to compensate for any historical admin errors (or whatever) they wish, subject to the normal tax rules..

There’s a backstop of 2 years for unlawful deduction from wages/holiday pay claims.

Email her and ask her to quote said employment law. Ive been out of HR for couple years now but if its documented I can't see how they will only go back 2yrs.

For the sake of stress of a battle, I would take their offer and take the leave as in take it not have it paid to you at a time that's convenient to you.

And whilst you are at it, Stop doing overtime, take your lunch breaks. The company has shown you they dont care about "you" only your output.

OK I think I see what you mean, thank you for explaining. But following your explanation, I don't go 3 months between not being given my additional AL.
I work 4 days a week for 6 or 7 consecutive weeks at a time.
Then I work 2 days a week for 1 week in February. 2 days a week for 1 week in May. 2 days a week for 1 week in October. And 2 days a week for 2 weeks in April. And 2 days a week for 2 weeks in December. And 2 days a week for 6 weeks July/August.
So there isn't a 3 month run of time in between the weeks I haven't been given hiday for.
I don't know if I'm making sense and I don't know if I am understanding you correctly either. Apologies if I'm not understanding you properly; I am getting very confused at this point. And I appreciate you trying to help. I do not have an HR brain!

If you want to check that your leave is now being calculated correctly:

https://www.gov.uk/calculate-your-holiday-entitlement

Yes, so in this case the 3 month rule doesn't apply but the 2 year rule probably will.

Edited for typo

It’s always good practice to follow up a verbal conversation with an email saying “It was good to talk today about ….. You agreed to do / you said you would/ you stated your position was…./ I agreed to ……. Let’s speak again in X days to see if we can bring this matter to a close” or whatever. Create a contemporaneous paper trail!

I'm really, really angry, because I kept on telling them manager my AL entitlement was under-calculated. If he had listened to me at the time I would have been within the correct time frame for backpayment and would have had it corrected moving forwards. Instead, I've been fobbed off for 4 years and now they tell me they will only repay me for 2 years! But I was raising this much longer than 2 years ago!
And to make matters worse, a colleague of mine took on additional term time hours 10 months ago and they didn't give her extra AL entitlement for her increased hours on 39 weeks a year either, so she spoke to them and in March this year they corrected her AL entitlement and raised it up to the correct amount, exactly the same as my scenario, yet still left mine as it was and didn't correct it! This was 8 months ago! They've left it till now to address mine, so that's wasted another 8 months of time and now they will only go back 2 years from this month. If they'd sorted mine out in March when they sorted my colleague's out, who had exactly the same situation as me, I'd have atleast got it backdated to March 2023 and then rectified for this year. Instead im getting it backdated to November 2023 and getting it rectified for next year. I'm hopping mad by how unfair this is!

Sounds like you know what to do… no more working through lunch. Leave when your hours are over. Claim OT.

Youre being taken advantage of.

Yes, I fully accept this.
It's really difficult because it's a small business and everyone is on very familiar terms. So emails confirming conversations aren't the done thing where I work.
You're completely right though, I do agree.
I'm absolutely kicking myself for it now.
Plus I'm annoyed with myself because every time I raised it and the manager told me I was wrong, I left thinking "I must be wrong then, he keeps telling me I am, so I must be" even though I knew I wasn't.

Yes, I fear I am.
It's not a very nice feeling.
Trouble with my job is it's patient facing so if I walk out at the exact time my employed hours finish then it's patient care that won't be fulfilled. I work with unwell humans and that doesn't run to clockwork. I work late due to a duty of care and conscientiousness.
It's more complicated than switching off a computer at my finish time. Often times when it is my time to stop working and go home, if would actually be unsafe, in terms of patient care, to leave at that time.
Though I do hear what you and others are saying, loud and clear. It will be difficult to execute.

No. That's what Unions are for.

You need some proper legal advice here. I don't see why you can't raise a grievance about the 8 month delay so they have to backdate your pay to March 2023.

Your previous manager sounds a complete clueless twat.

If the 2 year rule is law (I've no idea don't live in the UK), they ask how the intend to address the deficit?

• a one off bonus to the monetary equivilant of forgone annual leave
• additional leave over the next 3-5 years
• an a permanent increase in your annusl leave entitlement going forward
• a salary review

If the law limits them to 2 years, what's the next best alternative outcome for you. Determine what you want and negotiate hard.

Please contact ACAS or a solictor and don't take advice off the internet as advice can only be given based on what you state and there are things readers don't know. For example you haven't said if your 6 weeks leave is inclusive of paid or unpaid bank holidays or whether those are on top of annual leave

Your focus should be on getting the HOURS of leave you are owed so you can use them, and not getting a pay out for it.

Some of what you've been told on here is incorrect or only parts are right, plus the link about holiday pay and 2 years backdating isn't necessarily relevant to your particular circumstances (that's more about what factors should go into the rate of pay for leave such as regular paid overtime, allowances etc). When you talk to ACAS be sure to tell them that information.

Yes you were naive to not put anything in writing or raise a formal grievance at the time (or at least when your colleagues leave was adjusted and yours wasnt) but please get proper advice (ACAS aren't perfect but are better than random internet strangers of unknown knowedge and qualificaiton)

The 5.6 weeks statutory leave is inclusive of bank holidays. So essentially 4 weeks plus bank holidays.

If you missed out on 40 hours per year, did that mean that you were given less than the statutory entitlement? Or is the FT allowance actually 6 weeks plus bank holidays?

OP if it’s the case that you can’t down tools at your exact finish time ask your manager how they want to manage this - would they like to increase your working hours and pay to accommodate it? Would they prefer you to take it as time off in lieu? Can they make other arrangements so you can leave on time? Stress that you are conscientious and don’t want to leave people in the lurch but you feel you are being taken advantage of as you are regularly working over the contracted hours. I would add that as they want to keep it businesslike and stick to the rules you’d like to move forward on a businesslike footing too.

If you currently work an extra 4 hours a week, and either take those back or negotiate being paid instead of working the extra time for free, then in 10 weeks you’ll have reclaimed your 40 hours.