Being paid Annual Leave when not requested? Can we pay it back?

[JumpinJacques]

I hope I can get some answers to this as I can only find information about when your employer refuses to pay you holiday, or paying it back when leaving, not when they've paid you when you didn't ask for it.

DH started a job on 23/05/22. He requested 2 weeks off UNPAID not long after he started, as he was not entitled to Statutory Paternity Pay. His employer paid him A/L.

He then took 1 week off, again requested as UNPAID, for a course. Again, employer has paid him A/L.

He phoned in sick for 1 day and they have again paid him A/L.
Another day, he called to say there was serious defect with his works van that made it unsafe to drive and he wasn't prepared to drive it as it could mean that he would be liable for any fines/points if he were to get stopped by Police. They couldn't get someone to bring him another van that same day, so he did not work. Again, they have paid him A/L for this.

I understand they have tried to do him a favour by paying him for the time off, probably assuming that he wouldn't want to be unpaid. But we had planned our finances in advance, and were prepared for him to take it unpaid, rather than be in a massive negative within the first couple of months of employment and have to take unpaid leave at a later date that we hadn't planned for, or if he were to leave, having to pay it back. We obviously have time in the future where DH will need to use his annual leave to cover school holidays, and our actual holiday.

Can he request that this is paid back now so his holiday balance is back at zero? I know that if he were to leave then they would take what he owes out of his final pay, but I was wondering if it's possible to do it now whilst we can afford to take the hit?

We are planning on moving at the end of the year, but we currently have the money to pay it, and cannot guarantee we will be able to afford to pay it back or take unpaid leave in the future.

Any ideas?

Save the money he was paid for when he takes unpaid leave? It will all equal out surely?

I don't think you can because the emoloyer can dictate when he takes his annual leave.

I don't understand the issue - if youve budgeted for it then put the money aside for when/if you need it.

Some places won't give unpaid leave whilst there is still annual leave available. You might find that once it is gone, they won't approve the unpaid leave then anyway.

He'd only been there for 2 weeks when he went off for 2 weeks, so surely he hadn't accrued enough A/L. Fair enough paying him x amount of hours that he'd accrued and paying the rest unpaid.

They didn't tell him that he'd be paid A/L, he didn't know until he got his pay slip.

There are various reasons why we don't want to just save the money and use it later on. The main one being that we don't want unpaid leave to show on his pay slip when we come to apply for our mortgage!! And if he wanted to leave at any point(not planning on because as above, mortgage application etc but you never know!) it would be nice to leave without owing any money.

This is also a good point, what if when he actually NEEDS to take A/L they say, nope you've used all your years entitlement, you can't have any more time off unpaid or otherwise?

He has been paid for days he was not owed.

The unpaid request has he got written proof from his manager that the agreement was that he would not be paid for these days?

If he is sick then he can't be given AL unless he agrees to it

www.acas.org.uk/checking-sick-pay/sick-pay-and-holiday-pay

Once a mechanic has agreed that the motor was not road worthy, he should not be penalised for the company being unable to provide a safe work environment.

He needs to sit down with his manager and go through each payment.
Firstly to work out what holidays he was entitled to since he started to date
Then come to an agreement over how they will remedy the situation.

He also needs to understand how payroll changes are notified to HR/payroll because if they are being notified and not acted on he has a better chance of sucess.

Apart from the parental leave and sick leave then the employer is within their rights to refuse unpaid leave. However they should have informed him of this and requested he take annual leave instead.

I think the 2 weeks off after baby was correctly annual leave.

The course, was it work related/ compulsory or DH choice. If it was a work course then I would expect it to be paid time or TOIL, unless this was all previously agreed as an unpaid course before taking the job. If it was DH choice then taking it out of his annual leave quota is reasonable.

The sick day is incorrect and should not go down as AL, that should have ben unpaid sick (SSP policy) or possibly paid sickness via occupational sickness policy.

The work vehicle breakdown was a work day, and should have been paid as such and it they wanted him to put in some WFH he could have done that. Definetly should not be taken from his Annual leave quota.

They have employeed him because they want him to work, not be off, needing cover, therefore they won't want their staff taking lots of unpaid leave on top of their annual leave quota. This is fairly standard, if annoying.

But in case you aren't aware, as parents you are entiled to Unpaid parental leave (18 weeks over the next 18 years). www.gov.uk/parental-leave which is always handy to know about.

My previous employer didn't grant unpaid leave, as, in effect, he saw that as a means of 'buying' holiday- which it is, in a way..

Ie over 12 months you get less money and more holiday.

I'm not sure what he has in writing but they definitely did email him to say he was not entitled to Paternity Leave/Pay, which he already knew anyway. I will have to check, but I think they confirmed that it would be unpaid. Not sure about the other week off but they knew about it for a long time in advance, as before he was employed directly by them he was there on agency.

He didn't agree to bring paid A/L for the sick day, just assumed it'd be unpaid, as the first 3 days of sickness usually are.

We assumed he would still be paid for the day because of the van, not that they would take his A/L off him for something that wasn't even his fault.

He knows how much holiday he's entitled to, and he should still have the full amount, as he hasn't actually requested any leave until October!

We just want to know if it's possible to ask them to take the amount they've essentially overpaid him off of his next pay slip, before he goes to them with the proposal. They're quite a small company and use an independent payroll company who are pretty useless tbh.

I know it's at a company's discretion about if they allow unpaid leave, but surely if someone has no holiday leave to take, and that employee doesn't come to work, surely you just don't pay them?

Am I right in thinking that they should have told him in advance in writing if they didn't allow unpaid leave and that it would have to be taken as a/l?

If someone has no holiday leave to take and you don't go into work they would be classed as AWOL and trigger the disciplinary process.

I understand where you're coming from with that. But, DH told them in advance that he would be taking this time off, they agreed to it.

He had no A/L to take. They didn't tell him he'd have to take the time as A/L. He didn't go to work, surely = unpaid?

Most employers allocate the years leave quota at the beginning of the leave year. It is up to you to then book it, space it out and take it. If you resign during the leave year then you owe money for any excess leave taken or are owed money for anything not taken up to that date.

If they didn't do this no one would book leave in April and May, and then there would be too many people booking it later in the year. I work as a Paramedic and there is a very strict abstraction % for leave from the rota, so leave has to be booked in April otherwise there wouldn't be enough capacity.

I was wrong earlier about the fact that parental leave should have been unpaid by the way. Your dh needed to have worked there for a year to take unpaid leave after a baby is born.

They should have clarified that he could not take unpaid leave and that it must be taken as annual leave. Sounds like a mis-communication.

Wow - that's a lot of time off for a new joiner.

The day's sick leave shouldn't be treated as annual leave. The law is very clear on that.

I presume the employer provides a van? If the van was defective then that day sheoiof not have been treated as annual leave either. He was ready, willing and available to work that day. It's not his fault that his employer provided defective equipment.

The unpaid leave requests I think are different. What was his employer's reply when he made the requests?

Yes I did know that regarding parental leave, thank you @Comefromaway

The acas website says if you run out of leave or don't want to use it, you can request unpaid leave.

I will have a read of his contract and see what it says, and get him to go back through whatever correspondence he has from them about the time off.

I know it sounds like a lot of time off for a "new starter" but he'd been there for a while on agency prior to being employed directly by them, so he wasn't technically new iyswim. They new about the time off well in advance.

Nope, they may see it as a sign of good faith that they trust him and expect to have him working there long term.
They may traditionally allow people to prebook unearned holidays.
Some companies see it as a giving the employee a stable nett pay level through out the year as its easier for employees to budget.

If it is a small company with external payroll he should find out who is responsible for communicating payroll changes and how his manager should send the changes.
If he will exceed his total annual holiday allowance including any mandatory days off by the holiday year end, he should try to sort these out but if he will be within the allocation is would probablly be a better tactic to accept what has been paid to date and to transfer the extra money into a savings account.

I have never worked somewhere where I have had to accrue leave before I can take it. I find that quite an unusual stance to take.

i don’t think it’s unusual of the company that they have given him paid A/L even though he hasn’t been there very long.

I think it is quite cheeky of him to assume he can have all his paid A/L and then additional unpaid on top!

I would raise it as being paid incorrectly - the day sick is not annual leave- it is sick leave whether that is paid or unpaid and the day his work van was unsafe should be paid as a normal day and not removed from his holiday allowance.

He doesn't get a full years entitlement, as he joined half way through the year and their annual leave runs Jan-Dec. We have a 1 week family holiday in October and then 1 week over xmas. He had 2 weeks off when the baby was born, and then 1 week for a pre planned course. If he had a full years entitlement, that would be all used up? He was with them from January on agency and had no time off at all.

Don't think that really sounds unreasonable?

Has he actually spoken to his employer? Maybe the payroll staff weren't told it was unpaid? I'd start there before going off on tangents

It is very dependent on company, they will have a policy document somewhere regarding the various types of leave they accommodate - you need to request/get a copy of it.

If someone just doesn't come to work, chances are they will not be paid, but also they will record it as AWOL and they should begin an investigation into the employee which could result in dismissal.

They have no requirement to tell him in writing they don't allow unpaid leave, however they will have a policy about leave which will cover it and at some point a generic "company policies are available here xxx" will have been said to him.

It's weird they would just pay A/L especially for the van being broken, that is not A/L - unless maintenance of the van is his responsibility and he was unable to work because he'd failed to carry out something, but that seems unlikely...

Anyway - get a copy of the leave policy! :)

There's nothing in his contract or handbook about unpaid leave which is unusual. Just a very big standard Holiday section.

The manager who deals with it all is off at the moment but he will be speaking to them when they return.

And no, the van maintenance is not his responsibility, it's down to them. They kept chopping and changing the vans around, and didn't keep on top of the maintenance for any of them. On one occasion, he went to pick up a van from the mechanic that had apparently just passed its MOT. He got into the driver's seat and then realised there was a massive crack right across the windscreen...he refused to take it, obviously.

If nothing is mentioned then chances are they don't allow it, or it will be "at manager's discretion" - what does his manager say when asked about the A/L situation?

Also it's worth remembering that while they may say no to unpaid leave in the future they may also say no to A/L on specific dates in the future too, so having available A/L doesn't guarantee he'd be off on the dates you have planned :(