Unpaid on leaving employment

[MaverickSnoopy]

DH left his last employer towards the tail end of last year and had worked nearly all of the holiday year. We believe he has been underpaid his remaining holiday by 2 days. He was entitled to 28 days statutory plus 5 days contractual leave, the latter having been acrrued through long service. So a total of 33 days which the contract specifies.

The ex employer have calculated his pro rata amount like this:
33 days - 2 days (for Christmas and Boxing Day as he was no longer employed) / number of weeks in year x number of weeks worked - leave taken
They have made deductions before pro rating.

We believe that they should have:
33 days / number of weeks in year x number of weeks worked - leave taken

The contract says that he is entitled to 28 days holiday (including bank holidays) in a complete year and that it increases to 33 days holiday with service. Note: it does not say annual leave and bank holidays, it groups everything together as "holiday". It also says that on leaving employment holiday will be pro rated and rounded up to the nearest half day.

So when you round up the calculation as we feel he is owed 2 days. We spoke to acas who confirmed our understanding. He then raised a grievance as they would not communicate on the matter. They then ignored the grievance. So DH started the acas early conciliation process and nominated me as his rep, so I'm dealing with it (I used to work in HR and am pretty confident with this stuff).

The ex employer have looked at it and say they stand by their calculation, that they can deduct the 2 bank holidays because he did not work them. I believe that as part of his statutory entitlement they should be pro rated. Acas say that technically he had more than the statutory amount because of his accrued contractual leave, so the company haven't breached the statutory entitlement. I then say but then they have breached the contract and acas have now suggested we take legal advice. According to the acas handbook his entitlement should be pro rated, they say they have pro rated his entitlement but that it is 31 days because he was employed during the two bank holidays and so not the 33 days his contract says.

Honestly we cannot afford legal advice and for 2 days holiday it's hardly worth it, but we NEED the money and were expecting the money. This company have form for treating staff poorly (not paying minimum wage (which I reported anonymously to hmrc about a year ago), getting staff to do unpaid overtime (1 extra day per week - but it's in the contract but was intended as ad hoc) and the legacy staff should have been TUPED over to this company but they said (a very clear tupe situation was not tupe) and so much more. I realise these latter points are not relevant to his case but I'm just saying that their approach is ruthless and they will always push the boundaries of employment law.

Basically my question is, is my understanding correct? Or am I completely barking up the wrong tree. I was confident but this is going on for so long now and they're really pushing back so I'm doubting myself. Acas have to be impartial and so really I need a bit of a sanity check.

Sorry it's so long and for the rambling....trying to do this quickly before school run and then work!

I've never heard of accruing bank holidays as part of an entitlement. If the bank holidays fall after the employee's official last day at work then they won't be paid them. That's my understanding.

Yes sorry you're right about the bank holidays. See my head is now in a total state about it.

I appreciate the comments about cutting our losses but we really need the money.

I do hugely appreciate all the feedback and I am seriously considering leaving it for our sanity. It's just they have treated him (and others so very badly) for such a long time and in so many ways and I'm very much a stand up for what you believe it sort of person. If we walk away it'll just validate what they think. Really it's about the money though. We have a surprise baby on the way and we REALLY need that money. It doesn't help that I've just been very unwell and had to take some unpaid time off work either. Don't get me wrong, we're not grabbing money where we can. We do genuinely believe that he is entitled to this and it's hard to let the money go when you really need it.

The way it’s worded I think you do have an argument. I have calculated it as 31.1 days which I suppose given their wording they should round up to 31.5?

I agree probably not worth the headspace of a tribunal but worth a punt at asking ACAS to contact them to commence early conciliation perhaps?

Ah I see you’ve already been to ACAS

May be worth a punt at completing an ET1. The prospect of having to defend it may make them stump up.

The 28 or 33 days INCLUDES bank holidays you have stated this above so I would calculate his leave entitlement as

33 days minus all bank holiday when he will not be employed I.e. if he finished work tomorrow and had worked his notice period... Easter Monday, Good Friday, 7th May, 28th May, 27th Aug, Christmas Day and Boxing Day.

I'm sorry you are unwell OP, but I really don't think you'll get very far on this, especially as he was employed somewhere else for the two BH in question! I feel there is a completely different issue somewhere in your life and you are focusing on this as a distraction - sorry.

I agree with the company's calculation. They've stated the leave includes the bank holidays and stated which bank holidays they mean. Those 8 days of bank holidays are fixed, not holiday that's free to be taken as and when he chooses.

I work in payroll and HR and I agree with them. His entitlement is 33 days inc bh so to calculate pro rats hols I would take the bh out of it so 25 days and pro rata that for time here - does that make a difference?

There are many different ways to calculate holiday upon leaving, in my former job we would often disagree with with each other but it is right that he doesn't get the Christmas bank holidays if he wasn't in contracted employment then.

Ok to those of you who think they are right and he isn't entitled. For someone who was only entitled to 28 statutory days, what would you say their entitlement would be based on 49 weeks worked? Genuine question and genuinely interested to understand this.

To PP who said it sounds like I have something else going on...I really don't. I'm very worried about money generally although we're not on the breadline we do need every penny we're entitled to. We'd been expecting this so it's quite a shock.

Genuinely - let it go. You've already reported the company to HMRC previously, you've spoken to ACAS about them - it's not even a company that you work for.

I still think you'll take it to a tribunal.

I think they're right and I'm an employment solicitor

The scenario where an employee only gets 28 days isn't relevant since in that scenario the employee is only getting the legal minimum and so gets a pro rated entitlement to 28 days.

Your OH gets 33 days. 28 statutory and 5 contactual. The first 28 days will be deemed to satisfy the statutory requirement. The other days can be allocated by the employer - including terms as to when they accrue.

They have expressly stated that of the 33 days, two accrue on boxing day and christmas day. They've allocated them to those days.

I accept there is some ambiguity in their wording when they talk about pro rating but I think they could argue it in their favour given that they've expressly listed the allocated days.

I appreciate the comments about cutting our losses but we really need the money

You may really need the money OP but please be realistic about how much the 2 days equates to versus the Tribunal route in purely monetary terms.

Do the maths. Even if you self represent and don't spend a penny piece on legal fees and that's a big ask - you still have to appear at the court so you have to pay for transport plus time off work.

They have expressly stated that of the 33 days, two accrue on boxing day and christmas day. They've allocated them to those days.

They haven’t said that in the contract?

As you are an employment solicitor you’d also know that any ambiguity will be construed in the employee’s favour.

I have read it that he has a total annual entitlement of 33 days, which happens to include bank holidays. They don’t have any special status in law. If he’s been employed for 49 weeks of the year I think it’s certainly arguable he gets (49/52) x 33 days’ holiday.

If their interpretation is correct the contract should have been more clearly worded and stated that to be entitled to be paid for bank holiday you have to be employed on the day they fall due and that the right to take the holidays does not accrue

Thank you all. Really. It means more than you know to be able to discuss this.

Will we let it go? Not sure. But for the first time since this started, thanks to this thread, I am properly considering it. More so because of any further stress to us, rather than because I think they're right or wrong.

Can I ask. If we did log a claim to ET and then decided not to proceed, is it OK to withdraw the claim (it's not something I ever covered when working in HR)? I don't want to waste anyone's time so that would be a factor. We're still going through the early conciliation process, although close to the end and I'm wondering if we did lodge a claim, if they would back down.

Honestly, I'm just the sort of person who struggles to let go and DH who has been treated so badly by them over the years is keen to continue but is also pragmatic about these things. So we might decide to let go but it's a process that we'll need to work through.

There is nothing to stop you submitting your ET 1 - you need the Early Conciliation certificate number to proceed and that will be issued by your acas conciliator to signify no agreement was reached.

You can withdraw at any point but there is a stage at which you would potentially start to incur cost when statements need to be provided by both sides (you may be able to do this bit no problem) and exchange of key documents made. That may be when you decide to withdraw obviously if the respondent ie employer shows no sign of movement towards settling out of court with the 2 days claimed for . That's the risk you take....

As you know ET fees were deemed unlawful in Feb 2017 so no payment required to lodge ET claim.

Getting their ET3 is a reasonable barometer for getting their perspective and justification which can inform your next steps.

Yes if there were fees we wouldn't even consider it. I stopped working in HR in 2016 so it's been a while now but I try to keep abreast of changes. I have no contacts anymore either so I've felt pretty on my own with this.

I'll have a chat with dh tonight. You have all been utterly fantastic and have really helped me to think this through.

Ring ACAS for up to date advice.

What date did your husband finish working there? Is his holiday year from 1st Jan?

Having watched my husband go through a tribunal (and weirdly reading your husbands contract it looks like the same employer!!) I wouldn't recommend it for something as minor as this. I appreciate its not minor to you and there is money involved but when you take into account the stress etc.

Cut your losses and be glad he's in a new place of employment.

There is however always a risk of costs if you pursue an unreasonable claim.