are my employers in the wrong??

[Weenie1]

Before i booked our family holiday in feb this yr i filled im my daughters holiday form and asked my employer if i also needed to fill a form in for holiday leave. was informed No i did not need to, to then in april of this yr be asked to fill one in after i had booked and paid for my holiday, request for leave was declined but i went on holiday anyway. IM now having to have a disciplinary hearing for unauthorised absense from work which is classed a misconduct. My question is this i am being punished for taking leave but other work collegues have taken time off also and are not going through the same process, and it states in all our work contracts we are not allowed to take holidays during school term time as we are dinner ladies, so why am i having a disciplnary hearing and no others?? can my employers do this?

as dinner ladies we get paid £2,781 per yr, and rather than paying us for working just term time, they spread our wages out to cover the school holidays.

To get paid during the 6 week summer holidayr we are contratced to work the last school day of july and the 1st day of the new school term in sept to get paid during the summer holidays ( this is known as a retainer.) if we do not work either or both of those days we loose the 6 week holiday pay.

longer? long.

i have a permanent contract working part time.

my line manager told me it was unauthorised when it was declined in april, but cover was sorted.

per anum is our wages...they spread our wages out to cover the school hols

That doesn't sound legal Weenie1. If it was you had to be employed on those dates to get the holiday pay (retainer or whatever term they use) then that would be different.

It might make more sense if they are alleging that by failing to return to work on first day of new term your employment contract is terminated but presumable you have you returned to work? In which case they can't argue that unless dismissed you and rehired you.

What did you do when it was declined in April? Did you challenge it?

Can I just please clarify, did your manager at any point say you could take the holiday?

its legal K8Middleton..... its odd contract and other dinner ladies i have spoke to who are friends in northyorkshire dont have this in their contract but southyorkshire do , so i suppose its down to the council.as my contarct is with them not the school.

I was referring to your post at 23.18, where I thought you said that your colleagues were investigated.

It does sound as though they need to make their procedures much clearer; if they have been allowing practice outside of what is stated in your contracts, they surely can't suddenly decide to change things without a period of notice? Did you submit anything in writing relating to your request for leav, and, if so, did you get a written response?

No it isn't legal as per working time regulations (WRT) which is a statutory requirement and trumps anything in your contract.

You are entitled to 5.6 weeks statutory holiday pay per annum for a full year. This is pro rata'd for term time only working. If your employment ends your accrued pay would be paid up to the date you left (you accrue holiday while you work). If you have not left then you are still employed and then you would be entitled to your holiday pay for the period.

You may not be entitled to the full six weeks if that is usually more than statutory holidays, but you shouldn't be losing the whole 6 weeks for not returning to early to work because they would be breaching WRT laws.

I don't know if I can be arsed to do the maths at this time of night but I may have to..!

Is it 6 weeks holiday pay,as such,though?

I am assuming that you don't work in half terms,Easter etc either Weenie and that you would need to book your statutory holiday to land in any of the holidays,if following the letter of the contract?

I think it's payment for the 6 week holiday period as opposed to 'holiday pay' IYSWIM?

Does that sound right?

I think it's hard to say without knowing what she's getting, when she's getting it and how they intend to process the deduction from her wages.

If they take the whole six weeks and OP doesn't get her statutory holiday then the employer is in breach of contract and has unlawful deduction of wages.

To be honest op, the whole thing sounds a mess and it doesn't sound like you've handled it brilliantly either. I think you need to get some specific, individual advice with all the facts available. You need your contract, any other letters pertaining to your contractual arrangements, any correspondence about your holiday and a clear time line of events.

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I did do the maths, just for anyone interested... and might be useful for op when working out the deduction and how it has been applied.

Presuming 39 weeks a year are worked for term time only with only statutory holiday:

You are employed for your working time (39 weeks)

holiday time (10.77% of working time = 4.2003 weeks)

= 43.2 weeks per annum.

This is then paid across the whole year monthly in equal instalments.

This works out at £231.75 per month (if 12 instalments) of which notionally about 90% is wage and 10% holiday pay (approx £206.79 and £24.96 respectively).

To be clear, I am not saying her employer has done anything wrong. I am just saying it's worth checking the deduction has been correctly applied.

It doesn't sound like they're too hot on good process so not inconceivable they've made an error.

I agree that the whole thing is a bit of a complicated mess,and it looks to me that neither side is wholly in the right or wholly in the wrong.

Talk about grey area!

OP,I hope it works out ok.

For future,join a union,and always cover your back.
Before you take a course of action that could result in so much grief,just make sure you know what the possible consequences are!

I don't think on the face of things that your employer is behaving fairly. But I also think that you have certainly contributed to this mess.

I really hope that your previous good work record holds you in good stead,and everything works out ok for you.

Oh,and I would still see if you can establish 'custom and practice' when it comes to taking term time holiday.It's worth looking into at least.

we dont get paid holiday pay thats why they spread our wages out over the whole school term.

i get paid £180 per month.

have spoken to ACAS who have gave me great advise and have said i would have mention the fact others have taken time off also and not gone through this process, but thats its a fine line.

but that im in breach of contract which i have admitted is alone cause for this action but i should put to the board that i feel im being treated unfairly. And that any action against other staff is not relavent to my case.

But you are entitled to holiday pay. 20 days per year plus statutory public holidays for a full time worker. It must say this somewhere in your contract.

will have to double check my contract. which i will do later today.

All comments have been a huge help, and have had some god points of veiw for me to consider and take on board, so for that i thank all who have taken time to reply to me. :)

*good not god...lol

The only other thing I can think of that could help you is the, unlikely, possibility of some type of discrimination in the background in order to explain the difference in your treatment.

There's no delicate way to ask this. So, are you different to your other colleagues in the context of disability, age, race, or religion?

mariefab no im no different to any of the others ...my only down fall is i speak my mind, and if i have problems at work i bring them up at the meetings we have with ass.manager. to which some of my co-workers would rather i did not, but when the issues i have are regarding such things as first aid ( of which i am the dinner lady first aider) and the others doing things they should not they dont like the fact i bring it up, but im the one who has been trained in this area.

Just because you didn't have to fill in a form doesn't mean they had agreed to you having the time off by default. If LM had formally agreed it surely you wouldn't be in this situation. I'm not sure how helpful bringing others' holiday arrangements into it will be for the outcome.

It sounds as though you work in a school, at which your child is a pupil, and you were asking the same person in February about permission/leave for you both? But that at the time you were asking they were 'too busy' to even know the term dates...if this is the case then you probably should have left it then and asked for a meeting to have discussed this properly. I know it's too late now, but I can see how the issues might have become confused, and how a Head Teacher or office person might have been a bit annoyed by the way in which you went about all this.

Do your colleagues have children in this school? Are you sure they are not yet going to fine you?

Apologies if I have the wrong end of the stick! Hope they give you a fair hearing at least.

I think what happened is you asked in February and term dates weren't checked by you or your manager? So it was left til April and then refused? But your contract doesn't let you take holiday in term time? Mine doesn't and I can only take toil or unpaid.

Im sure they are not going to fine me the headteacher confirmed this as my daughter has 100% attendance, yes others have children in same school. My holiday leave was unpaid and now have this hearing to attend.