Office Holiday Pay.

[KungFuPandaWorksOut20]

Posting for a friend.

She works in a small office, 5 staff members in total.

She got notified yesterday the office is closing from 20th December til 4th Janaury as the owners (3 of the office members) have family over.

They have informed her she will not be paid for this whilst the office is closed. At the start of the November they went on a 2 week holiday, and closed the office. When she expressed she doesnt have 2 weeks holiday leave to cover the closure, they told her she doesn't have to cover anything as it's there holiday not hers, and not to worry.

Payday rolls around and she got nothing. When she queried it, they said What you was expecting to get paid for doing nothing?

Her role can be completely done from home, which her employers refused throughout the pandemic. Although doesn't stop them ringing her after hours to do favours.

Is this correct, that they can just close the office whenever they want and she has to deal with financial fall out?

Her contract mentions nothing about this scenario.

If she has guaranteed contracted hours and is willing and able to work them, she must be paid. Employer’s choice not to allow her to work doesn’t change that.

It’s fine for an employer to require an employee to use holiday for a closure, as long as enough notice is given, but they can’t just not pay her, no, unless she’s on a zero hours contract or something.

She should raise a grievance for an unlawful deduction from wages.

She works the same days and hours, and has done for 2 years.

Who would she raise the grievance with? When she queried the non payment for their holiday she was met with a laugh and told you expected to be paid when you didn't work.

Your friend needs to speak to ACAS for advice. They can outline the legal position clearly based on her specific circumstances and provide advice on how to proceed.

The owners are taking the piss.

Lots of other jobs out there at the moment - I’d be looking for something else if I were her, whilst pursuing the payment of what she’s due.

@KungFuPandaWorksOut20

She works the same days and hours, and has done for 2 years.

Who would she raise the grievance with? When she queried the non payment for their holiday she was met with a laugh and told you expected to be paid when you didn't work.

What does her contract say about working hours?

It’s a case of being entitled to be paid if she is ready and willing to work her contracted hours. The fact she didn’t work them doesn’t matter.

She’d raise the grievance with the owners, claiming unlawful deduction from wages, and if they refuse, she can bring a tribunal claim.

Hopefully if they get a formal grievance for unlawful deduction from wages they’ll then seek advice from someone who’ll tell them to pay her.

She said in her contract just states for the hours part, it is 8.30 til 1.30pm but if requested or deemed necessary over time will be required.

Shes worried if she raises anymore concerns they will fire her.

How long has she worked there?

2 years

Ok so they can’t just fire her then, if they fire her she can bring a claim for unfair dismissal.

Would be being fired be worse than having someone mess with your income like this?

They could require her to take some leave over Christmas, my work does, but it’s in our contract and we get plenty of notice.

Four weeks closed out of eight is unreasonable and they are being extremely thoughtless expecting anyone to be OK with losing half their wages two weeks running.

Get her to speak to ACAS, they are unlawfully deducting from her wages. If they fired her for complaining she could probably take them to IT for that too.

Her contract mentions nothing for using holidays for Christmas. Understandably this time of year is hard for a lot of people and with in quite short succession she is going to be down a lot of money through no fault of her own.

Employers can direct when holiday entitlement must be used, but can't spring it on her after she has used all her holiday entitlement.

What has happened in the previous 2 years she has been there, is the office normally open for work over Christmas and New Year? If the offices are normally closed she should have saved holidays for 25th December - 4th January. They cannot tell her 20th - 24th will be unpaid after she has used her holiday entitlement for the year.

Employers can dictate leave. Does she use her statutory paid leave at other times of the year? If this is on top it can be unpaid, if deducted from her leave allowance paid.

As Flowery says, any dismissal would be unfair. She needs to follow her employer's grievance procedure and complain about an unlawful deduction from wages. If they refuse to do anything about this, she will need to take them to employment tribunal. I'm afraid that is the only way she is going to get her money. Of course, if she goes down this route her relationship with her employers may not recover, but she should look for another job anyway. She should not continue working for an employer that treats staff like this.

She only last 2 days pay last year over Christmas with how the dates fell. But she wasn't told she wouldn't be paid, she only found out when her pay slip landed.

Shes a part time employer who only has 12 days holiday a year. Of these two cases alone this well and truly exceeds her entitlement!

It sounds like even her holiday entitlement has been worked out wrongly. Why is she only getting 12 days a holiday a year. She should be counting a day off as half a days holiday which would give her 24 days off work. Or work it out on an hourly basis which is quite complicated but Ive seen posts about it. In any case it should be more than 12 days.

How many days/hours pw does she usually work? What does her contract state? Any over her allowance will be unpaid.

She works 20 hours a week 4 days a week.
Her contract states the above but also says overtime may be needed if deemed necessary for business needs.

It sounds like her employer is breaking the law on holidays as well. She is entitled to a minimum 22.4 days off (including bank holidays), with each day off counting as a full day. If each day off counts as half a day as Viviennemary suggests, they are giving her 24 days which would be ok. If, however, a day off counts as a full day (which is what I suspect is happening), they are well short of the minimum holiday requirement. She needs to leave and take them to Employment Tribunal to recover the money unlawfully deducted from her wages and get compensation for the holidays she should have been given.

As others have said she's entitled to 22.5 days annual leave each year - if the office is closed down for the Christmas period then she can be required to use annual leave for this (& be paid) but not if the closedown is due to the whims of her employer without the appropriate notice given - usually twice as long as the holiday at a minimum so for the 11 days close down they'd need to have given notice on 18th November.

I'd definitely recommend she contacts ACAS & looks for another job.

If she raises a formal grievance & they start to become difficult she can leave & bring a claim for constructive dismissal - however I'd make sure the 2 years is the full 2 years & not 1 year & 11 months before doing this. Given that they're not great on employment legislation there's every chance they've recorded her start date wrong so I'd be double checking these sorts of things before going any further.

Is she the only employee other than the owners?

I would be cautious with a claim for constructive dismissal. Such claims are hard to win. However, if she is dismissed for complaining about an unlawful deduction from wages or trying to get her statutory holiday entitlement, that would be an automatically unfair dismissal which means she can claim unfair dismissal regardless of her length of service.

Flowery's advice is correct (it always is). If her contract states 8.30am - 1.30pm then she MUST be paid for those hours. Some contracts allow for short time working but there is a procedure which must be followed.

Also she does need to check the holiday situation as she is entitled to 28 days (including bank holidays) Her day's holiday pay must be the same as she gets for working her normal working day of 8.30am - 1.30pm.

We close for 10 days at Christmas and employees have to use holiday. But everyone knows this from the start of the year and know they have to either save their holiday or take unpaid leave.

@prh47bridge

I would be cautious with a claim for constructive dismissal. Such claims are hard to win. However, if she is dismissed for complaining about an unlawful deduction from wages or trying to get her statutory holiday entitlement, that would be an automatically unfair dismissal which means she can claim unfair dismissal regardless of her length of service.

I totally agree, but that relies on her being dismissed and they may not do that knowing that she could take them to tribunal having the required 2 years service, so they may just decide to make her life hell in the hope she'll leave of her own accord - smaller family/self appointed director run companies tend to not have great company culture and this is already evident in the way they've just laughed at the thought she should be paid because they've decided to swan off on holiday & close up shop with no notice or consideration for their employee(s).

Slight update.

She queried the dates for closure. They confirmed the dates again. She asked about pay and they told her they legally do not have to pay her if she isn't working, and she must have lost her mind if she thinks she will be paid for them days.

When she mentioned she will have to do a formal grievance and can she have a copy of their policy. They've informed her they don't have to a policy and she can put in a grievance but nothing will come of it.

I have just informed her that the calculations for her holiday days are incorrect and to double check them.