Can any employee lawyers help me - problem with old Company not paying Holiday pay whilst on Maternity Leave

[MrsRecycle]

I'm not sure if anyone can help me but I've spoken to acas and it looks like I've been well and truly shafted by my old employers. Background - sent them a letter last June advising them of pregnancy and proposal to take 5 days holiday just before Maternity Leave. Never received a reply or acknowledgement. Received my maternity pay but the 5 days holiday were unpaid. Chased up my payslips which were finally sent out 3 months after start of maternity leave. Spoke to payroll (emailed them but they said as it was so complicated they would speak over the phone) who explained that as I was on Maternity Leave I could not have the 5 days as this was payroll and the Inland Revenue wouldn't let me be on payroll and maternity leave at the sametime. They promised that as soon as I finished my maternity leave I would get the 5 days owing to me. Spoke to my boss on numerous occasions about this and promised the 5 days. I was awaiting a suitable position to arise so that I could go back to work. No suitable position materialised (more cr*p over the phone) so I got a job with another company and asked for my P45 and owing money (in May this year).

They promised this to me but it has never materialised - only a P45 which showed 0 pay for the current tax yer. When I spoke to them over the phone they said that I would have to put everything in writing. This I've done and I have been going backwards and forwards with them. They are now saying that I took too many days off and are not paying the 5 days. I have signed timesheets that back-up the days I took holiday and the days I was sick. My contract states that I had 20 days holiday (in addition to Bank Holidays) and 10 days sick and that the sickness notification is by a phone call to my manager. This was done. On my timesheets, when I had holiday I wrote it accordingly and when I was sick I wrote either sick or n/a. They have also misinterpreted the timesheets and are saying that for some days I was not working when the timesheet clearly states that I was.

I have spoke to Acas and, surprise surpirse, any claim for an illegal deduction from your pay needs to be made within 3 months of it happening. So they knew what they were doing when they held back my payslips.

I would like to issue a small claims against my old employer for the 5 days plus interest (since it is over a year now) and I know the process itself is quite easy. Has anyone ever been through this process or is anyone an employment law specialist? Do you think I could win, as I have documents that back up the days I worked - I just don't have documents to back my sickness as this was done verbally over the phone.

Thanks for reading - and helping!!

When did you go on maternity leave? As others have said, you will also have accrued holiday while you were on Maternity Leave. Do you sill have a copy of the e-mail that you sent paroll - this at least prviides back up to when you started qy=uerying them.

Try and right everything down - when you hassled for the payslips, when you recieved them, when you e-mialed Payroll, when you talke dot them, waht they said, when you talked to your boss, what he said. If you can't remember the exact dates, just wirte "appoximately". Maybe old phone bills would help you work it out?

Why did a suitable job not materialise? Were you taking addintional maternity absence, rather than just straight maternity leave? For maternity leave, they have to keep your old job open and for the extra 6 months (ie up to a year - as it would have been last year), they have to offer an equivalent. Did they not offer you an equivalent

If that was the reason you left, they have also broken the law with that. If you're happy in your new job, and are prepared to let it go rather than get in to more hassle, you could always threaten to take this aspect to court (ie construcitve dismissal through failure to provide you with suitable employemnt following maternity absence), if they don't pay up for the holiday pay you are due.

Oh mumsnetters you are wonderful - thank you so much. Prettybird - I started maternity leave on 7th August 2006. I did think I could do them for constructive dismissal as well. They kept on promising me a role but it just didn't happen (I even had childcare sorted for returning to work and they let me/cms down in saying I couldn't go back.) Although I have nothing in writing to say that I wanted to go back to work, thats the problem. I could threaten them couldn't I? I am really happy in my new job and my new boss has said he will give me a reference whenever I need one.

I have copies of all emails but I don't have mobile phone logs as these were online and I'm not sure I can still access them a year afterwards. I also have dates that I rang them. I'm going to log everything on a file.

VVQ - thank you for your email and for volunteering to help. I'll reply with dates/etc later.

oxo - I might give Camilla a call for her stance on it.

Do you know the worse thing - my ex boss's wife has just had a baby and I bet he'd be fuming if she was stitched up like I was.

Er...why couldnt you go back? You are entitled to return to your job, or a job of equal standing/salary.

Because I was working for a client site and that client no longer had a contract with them, hence no role for me. But they asked me to go another client at the beginning of December and I was meant to go back and the Friday before I was meant to start they said it was going to be put off until after Christmas as the contract hadn't been signed. I then chased them all the time for the contract to be signed and it never happened. I was desparate for money so took another position offered to me with another company.

Gosh the more I put things down in writing, the more I think what a good case I have.

Were you self-employed or PAYE? You must have been PAYE? So they MUST have given you a job at the end of mat leave.

What would they have done if a job had ended whilst you were doing 'normal' full time hours? Laid you off until they got another for you to do?

PAYE - they kept on promising me that a job would materialise in the foreseeable future and after 4 months of these empty promises, financially I couldn't hold on anymore. How I wished now I'd written that letter giving them 21 days notice of my intention to return to work. But I just kept on chatting to them and believing all that they said to me over the phone.

oh mrs R

They had most definitely constructively dismissed you.

Such a shame that you cant go tribunal. They'd have lost. Without a doubt.

But they've only deducted the money from my P45 dated July 07 - maybe I have a case! Also just checked out the working time directive that eleusis sent me a link to and I am entitled to accrue holidays whilst on AML so they owe me another 10 days. Why did I believe them when they said in their letter that they'd spoken to Acas and I'm not entitled to it. I'm not going to believe another word they say. I'll start preparing my case tomorrow and will send you the timelines. Does it matter I don't have anything in writing?

emails count though. Letters are better, but, as long as you have a diary of telephone conversations then that will do. If you have a p45 dated july 07 you CAN go to tribunal woo hoo

Mrs R that is even more outrageous. And you don't need to do anything in writing about returning from maternity leave unless you want to come back early - if you want to come back at the end of your additional leave you just need to turn up.

Grrrrr

Hope you can pull a case together

mrsR, free employment advice here:

www.rlas.org.uk/advice.htm

open weds eves 8pm - 9pm no appt necessary.

can advise on employment issues etc.

Do any of us know that if an employer owes you money that you can sue them in the small claims court even though the 3 month period for constructive and unfair dismissal in the tribunal has expired. I rather fear it is too late here but you could threaten them and see what happens. Even if they didn't have a job for you you could have turned up and the office when the leave was up and they would have had to pay you. Intsead you kind of chose to leave I suppose.

I'm pretty sure if it's unpaid wages you can, sure I have read that before, although someone please correct me if I am wrong.

I f you look at www.lawpack.co.uk/small_claims_faq.asp#4993, it makes the comment that people under 18 can only claim in respect of unpaid wages, so that would imply that you can bring a claim re unpaid wages.

Wow thanks pc - I might see if I can nip out tonight and see them. Hope there isn't a queue.

Thanks prettybird - I was drafting a reply to them and the opening sentence of their last letter to me said "as you have requested additional payment it is company policy to ensure that the payment is valid. Bl**dy cheek - I'm only after what I'm legally entitled to. And why didn't they make sure my claim for sick leave was valid in the months when I was paid it (iet January, February and April).

I'll see if I can get to Richmond tonight and will post back. Off to collect my paperwork together....

OMG - have just reviewed all my ex-employers letters and they are completely inacurate. The said that I wasn't entitled to accrued AL on AML due to Work and Families Act 2006 yet I've just read it and the first line says this act applies to babies born after 1/4/07.

The first letter also says I took 26 days holiday. Yet this last letter says I took unauthorised time off. Make their minds up!! I am really fed-up communicating as they are getting everything wrong. Hopefully rlas will be able to draft a letter for me (or I can whilst I'm there).

let me know how you go MrsR. i rang them earlier and they have different volunteers who specialise.

they advised me to go 15th august for some specific seperation/divorce advice.

luckily it's a weds so can get babysitter.

good luck!

Update...

pc - they were brilliant - would really recommend a visit.

RLS have recoommended that I issue a brief letter threatening small claims court if they do not pay the monies due. They recommend that the company are inept and have recommended that I have look at the accounts to see it there is any likliehood of them going under (good idea). Also, they think I have a good case for constructive dismissal (as do you all) and I've checked it out and it needs to be within 3 months which should be okay.

They've recommended that I do a chronological listing of events and cross reference this to the documents for court purposes which I'm going to do. Once I've done this, I'll send it to you Vicki for your advice, if you don't mind.

Also, I've looked at my contract and it states that the absence procedure that they are querying needs me to complete an absence form that I was never provided with so I put everything on my timesheets.

Finally, in my contract it states that for Maternity Leave (this covers OML and AML) all benefits continue, apart from pay and renumeration so I can claim the 10 days extra holidays.

Watch this space... and thanks for all your input....

MrsR, I'm definatley going next week and possibly this week if I find I can't wait that long. Apparently the specialist I want is deff there next week tho.

How did it work? Did you take a ticket and just wait? Did you get there at 8pm on the dot? Where did you park?

Questions, questions, questions!!

Anywhere nice?? Lucky you.

I turned up at 8pm (no ticket) - had to fill in the form - you may want to save some time by downloading the one on the internet and completing that before you go. I was seen around 8.10pm and was out by 8.30pm. Not much of a queue. Excellent service.

anywhere nice what?

didn't get there last night. the temptation of a glass of wine put paid to that LOL.

am definately going to go next Weds tho. ta for the tip.

hope all's well with you ;-)

oops read your post wrong - can you tell I'm under mega stress at work??? I'm fine thanks. Do you need a baby sitter next Wednesday? I could pop round (dh has all 3 at the caravan and I have to work )

aww thanks, that's really kind but Grandma stays on Wednesdays so built-in sitter!

hope work chills out soon.

It just has - finished month-end stuff and I'm leaving to go shopping to get my Jimmy Choos (my present from dh for having his beloved son!!). .

oh my! lucky you! have fun.