Please help, this is making me ill

[ChowNowBrownCow]

I was told on Tuesday by my manager that the annual leave that I was given back in 2008, I was not entitled to. Under the flexible working scheme, I changed my working pattern to part time, which is 3 days a week , school hours, which equals 16.5 pw. Also, term time only. Perfect - or so I've thought for the last few years. I have had 5 new managers in that time and each manager has checked with HR and payroll that I would be entitled to annual leave pro rata for the hours I work. Each one has come back with a yes. This has never been because they have doubted it, but because they each record it differently. I have always been told that the school holidays was unpaid leave, but my annual leave is paid. As this has been the case for years, I have never had reason to question it. I don't work in a school, I work in a local government office. Therefore , conversations with other staff about leave have never come up. I get a new leave card each year, clearly marked with my entitlement on it. So, due to a new system being put in place by HR, it's been apparently flagged up that I shouldn't have had it and now needs to be paid back. They are working out the cost, but it will be thousands. Also, with immediate effect I have no annual leave. My manager feels I should be grateful that I keep my job and that 'nothing has changed financially " for me! I am totally stressed out by it. I can't sleep and I don't know what to do. I am waiting for the union to get back to me. Please can someone help me get things straight in my head as to whether this is allowed? Thanks

I don't know anything about this area but when i worked in the Inland Revenue years ago I was told that if you had been overpaid and they hadn't flagged it up within 6 months they couldn't claim it back.

I can't imagine that they can do this. What does your contract say about holiday entitlement? And at the very least they shouldn't be able to take it back in one go.

I have to say, them saying that you're lucky to keep your job as if it's your fault would be the bit that annoys me most.

Hope someone comes alongs who can help.

Everyone is entitled to AL pro rata just the same as full timers are entitled to AL.
Unpaid leave is unpaid leave. Are you quite sure it has been unpaid?

The only way to clarify is to go through your contract line by line.

Are you in a union? If so, ask them for advice. If not, search the CAB and ACAS websites, in case they mention this.

Do you have any emails or letters which would be evidence that any of your managers have checked with HR and they OKed it?

I don't know what the actual rules are, but the fact that it was requested to be checked more than once and it's been happening for years I should have thought would go in your favour.

What 3littlefrogs said. All sounds a bit suspect to me. You need to sit down with HR and go through it.

Hi yes I am in a union, in fact they helped me secure the contract I now have! I am not sure if I have emails as it goes back years and plus it wasn't me who checked with them, it was my managers and they have always confirmed my entitlement. My manager has verbally told me that she has checked with some of the managers what they were told too, but now HR verbally have said it was an error. I can't believe it tbh. I complete a time sheet each month and if I have a school holiday and annual leave then it is clearly typed on it. This then goes to my manager and then she authorises it and sends it onto HR. This has been the arrangement over the 15 years I have worked there! You would think that someone would think 'why is this person having school hols AND annual leave?' Also, every time I take annual leave it needs management approval.
3 little frogs - am I sure it was unpaid? This was something my manager said, she said it may be I get annualised hours and that could mean I was paid during school holidays. I was told it was unpaid leave originally. I get my salary paid in 12 equal payments as that's what I opted for at the time as otherwise they said I would get more some months than others.
I just want it to go away......... This has come at a very stressful time in my life. And what's more it's not my fault!

It should be easy to work out if you have last year's P60 and you know your salary.

The school year is 39 weeks. That leaves 13 weeks holiday in total. Every employee is entitled to 5.6 weeks annual leave. 13 - 5.6 = 7.4.

So your unpaid portion of the year is 7.4 weeks.

Assuming your full time hours would be 37.5 hours, your annual earnings should be:

(Full time wage/37.516.5)/5244.6

In other words, reduce the full time wage to a 16.5 hour wage, then deduct 7.4 weeks worth of wages to take into account unpaid school holiday time.

We would always be copied on the results of such discussions with HR; not necessarily the actual discussions, but confirmation that you have X days holiday for the year.

If I was your union rep I'd be arguing that you should not have to repay a bean. It isn't your error, they "gave" it to you and they should write it off as a goodwill gesture.

Of course, going forward you should work in accordance with the contract; as the PP explains it is actually straightforward. You get annual leave, it's just that you take it during the school hols and get unpaid leave as well.

get your union onto this pronto. i doubt you will have to pay anything back if you can get union advice on what to say/do

Actually, do you mean you get the school hols off AND annual leave to take outside school hols?

But that would be fine if the school hols are unpaid.

Temporary, should that matter though? If the op has 13 weeks unpaid and then 5.6 paid as per entitlement? Surely as long as the school holidays are all unpaid, it shouldn't matter and the 5.6 would just be worked out based on the hours she actually works?

The clue here for me is the " new system" which very possibly isn't working out your situation. They can't just say " it's the new system" as though a new payroll program runs the place and who's data crunching is law! Is there anyone else in your situation on the same entitlement as you?

Are they saying someone in HR in charge of holiday entitlement screwed up since you started?

Certainly don't agree to pay anything - and write a formal letter saying exactly what you wrote here and how your managers agreed. It's not for you to prove really- you have worked and no one said anything. If you had left it's unlikely they'd have chased you or noticed - so I think the " system" is in error, not you.

You need to take Union advice or see an employment lawyer. I don't think there is any way you will have to pay this back. If someone doesn't come along who knows what they are talking about, I'll ask my lawyer friend if I see her this weekend.

I think it does matter. If she has been booking leave on top of the school hols then she would have had considerably more annual leave than she is entitled to.

Now, if I was in charge of sorting this situation I'd want to see the email trail setting out her entitlements year on year, with everyone not realising the error. I'd want it put right, but I wouldn't expect her to repay. Not for a genuine error, undetected by many.

Much sympathy OP, I would also be very stressed about this.
I've had a quick google and found this:
www.acas.org.uk/index.aspx?articleid=4125
It says:

On Thursday 18 December 2014 the Government announced a planned change to the Employment Rights Act 1996 in relation to claims for deduction of wages. The change will mean that when making claims for a series of backdated deductions from wages, including any shortfall in holiday pay, the period that the claim can cover will be limited to a maximum of 2 years.

It is expected that the effect of this change will be to limit the scope for a claim for deductions from pay going back more than 2 years for any claim presented on or after 1 July 2015.

Now as it's not yet in force, they may argue that this doesn't apply to you. However, I would work out how much holiday you have been paid for (i.e. see if they're correct) and if they have paid you too much, I would get in touch with the union to put pressure on them to write it off/reduce it as it was their error (and was checked regularly). It could be that you need specialist legal support (through your union) so don't let a shop steward fob you off if possible.

They also can't say that you have no annual leave - that's ridiculous. You should have your annual leave allowance written in your part-time contract and they can't just decide you don't have it.

Temporary - I've read this as the school holidays have been categorised as unpaid leave. Therefore only the term time dates count for annual leave calculations. She won't get the full AL allowance that she'd get if she worked 52 weeks. It is the same as working p/t but every week. It's just that the nonworking days all fall at once rather than (for example) 2 days per week.

But OP, what does your contract say?

I would think that is OP only works term time, then she should get annual leave on to of school holidays.
So she is contracted to work 39 weeks a year, and is entitled to 39/52*5.6 weeks holidays = 4.2 weeks ON TOP of school holidays.

I work in a local gov office too and have managed staff before with similar working patterns to yours e.g part time/term time. They were all entitled to annual leave on top of the term time holidays they got off, on a pro rata basis, usually recorded in hours.
It was always the responsibility of the manager to figure it out though, and it was complicated however I cannot believe they are now telling you you're not entitled to any! This is very unfair.
I'd definitely speak to the union and also see if you can find a copy of the old policy in the intranet as ours contains the formula to work it out. Have a go yourself.
Hope it gets sorted OP

The only way you wouldn't be entitled to additional annual leave is if you're actually using part of the leave for the school holidays, so you're being paid on something like a 43/52 contract instead of 39/52. So basically they have been overpaying you by four weeks a year. In those circumstances you should probably have the opportunity to negotiate whether you would like your pay to go down, to take you to a 39/52 contract or continue on the pay you're on and use your annual leave to cover the school holidays. You need to talk to your union regarding both this and whether there is room for negotiation over repaying the overpayment.

I bet this has been flagged up by a move to a new integrated HR/Payroll system showing you are being overpaid.

Thank you everyone for your help. I am hoping to speak to the union tomorrow. I also need to get my file from HR to check my contract. I only have copies of my flexible working form that I completed years ago. And yes daisy, you are spot on re the integrated hr/payroll system!

OP have you clarified what your annual leave entitlement actually is?

Does your statement of terms and conditions (contract) have a clause about 'Deductions'? If so, does it mention overpayments or holiday pay?

I think the forthcoming legislation mentioned above relates to employEEs claiming back historical underpayments from employERs and relates to new case law relating too what constitutes holiday pay exactly. This is the opposite situation to yours and I don't think the legislation is relevant to you.

I hope your union has been helpful and you are on your way to sorting it out.