Employment law help please

[HRteamABU]

Hi, I have a term time only contract at work for a job I've been doing since the beginning of the year but I've worked for the organisation for around 8 years. The term time only job was offered to me with five additional weeks paid holiday and I've been using the leave in addition to the school holidays. However now HR are saying they've made a mistake and I shouldn't have the five weeks extra holiday (even though it's been allocated to me on the online holiday booking system at work) and the five week's paid holiday is stated in my contract, offer letter and the job description. They are trying to make me either make up the time for the days I've had off or repay it in money. I think as it's their mistake and I was given the job with the five weeks paid leave that I shouldn't have to do this. Any advice gratefully received.

anyone please?

If you have it in writing then it is part of your contract and it is their fuck up.

Are you a member of a union? If not then you should join one as you can access free legal advice. In the meantime ACAS is worth a call. Ultimately if they want you to change your hours then they can pay you for the extra.

Thanks very much @ellobrian - I am going to join the union but figure they probably won't be able to help with something that's pre-existent.

If anyone else has any advice I'd be really grateful.

anyone?

If the 5 weeks holiday is stated in the contract- they need to consult with you before they change that- if you decline the change- they can dismiss you but rehire you on the new contract terms.

Have a look at the ACAS website- that will give more info re contract changes

So you're holding out for 5 weeks paid holiday on a term time job?
I'd be surprised if your contract says that but I suppose mistakes happen. Let's be honest, it doesn't look good on you if you hold them to this: you took a term time job, it's clear you're needed during term time. If your contract does indeed say that they will need to vary it, with notice (and they will) if you refuse to come to a mutual arrangement.

Five weeks holiday and also only working term time seems an awful lot to me. They can't change your contract but they can move to dismissal due to the length of that contract. But if not, They can move to single person redundancy and say the position with the holiday is not sustainable for them.

There is no guarantee they will then hire you back.

I'd be very careful if I was you. The odds of winning this and keeping your job is low.

I would assume that your holiday would be pro rata as you don't work full time.
TTO = 39/52 weeks. = 0.75 contract.
0.75 of 25 days holiday = 19 days

If the FTE salary is £30k, you should be paid £22 000 and receive 19 days paid holiday.

I'm guessing someone in HR can't do the maths.

Those of you who are says no she shouldn't get the holiday, everyone is entitled to paid holidays! If a person worked three days a week, you can't say they don't get any paid holidays because they are part time.
My DD works 4 days a week, so works 52 days less than a full time employee. She's still entitled to 5 weeks paid holiday, it's just that it equates to 5 lots of 5 days, rather than 5 lots of 5 days which the full time workers get. She therefore is not working for a total of 72 days, whilst a full timer doesn't work for 25 days.

it's just that it equates to 5 lots of 5 days, rather than 5 lots of 5 days

Obviously mean 5 lots of 4 days!

@Soontobe60 but people in term time jobs have their holidays in term time! The salary is worked out accordingly. No entitlement to holidays on top.

Sorry, obviously I meant during school hols.

Yep

Tell them to piss off .

FWIW, I think the confusion could be that the employer is expecting the paid holiday time to be taken actually during the school holidays, which is how it works in schools with TAs also getting holiday pay, but can only have school holidays. (TAs are paid term time only plus holiday pay but over a 12 month period)

I doubt they can make u make this up , they have a legal contract with you that gives you 5 weeks . They can’t make you make it up .

@confusedandemployed

They are still entitled to holiday pay.

Yes. Which they get during school hols.

I had a similar post and had a crazy number of holidays not proportional to the amount of time I spent there . So essentially I got paid for it being there . It was the departments way of trying to stick to the university bandings for the type of role I was doing , whilst acknowledging my professional qualifications would normally pay me a lot more . So I was paid an hourly rate that was low for my qualifications , but then they gave me an obscene number of weeks of holiday pay to correct that and bring me up to an hourly rate that matched what the general market would pay .

So it may be HRs mistake .

I got paid for not being there

I think you need to meet them halfway. Clearly they've fucked up but it's not going to work for them keeping you on the existing contract.
A midway point would be you don't repay any holiday taken so far, and they honour any existing leave you've already booked. But you accept a new contract which removes those 5 extra weeks. Obviously check the legalities withACAS and make sure a new contract accurately calculates correct salary.

www.admin.ox.ac.uk/personnel/during/leave/holiday/calculation/term/

This might explain it better.

But the way op has worded it it sounds more like a 'seasonal' job that she starts again each year, not a term time only job that she has 8yrs continuous employment in? In which case she would have to take hols in term time, as she's not actually employed over the summer? Unless it's possible to use all her hols in half terms and Xmas and Easter I suppose?

www.stoneking.co.uk/literature/e-bulletins/calculating-holiday-pay-term-time-workers

This looks at how the courts decided employers should calculate holiday pay for part time / term time only employees.