Employment holiday entitlement help

[whitty1975]

Hi all, I am after some advice on my entitlements. i have been off work for 12 mths now and will be unable to return to work due to a health problem, my employer wants me to resign my position due to this(which i have no problem with) but i am wondering what holiday pay I should be paid as they say i am entitled to nothing more than the week in hand that was taken from my 1st pay packet. I was paid for bank holidays and accrued 1.8 days paid holiday for every completed month of employment they paid me ssp for 6 mths then i went onto ESA. during my absence i was not paid for bank holidays or the holidays i had accrued (7days) before going off sick which would now fall into the last financial year so i understand i may have lost those (other employees have been able to carry untaken holidays forward to this year).

 

Can anybody give me any advice

 

 

Thanks

[honeybee13]

Hello and welcome to the forum. There is a 'sticky' about this, by JonCris. If you use the back arrow to come out of your thread, you can scroll up until you find the yellow section and then have a read. If you need more after that, please shout.

 

My best, HB

[whitty1975]

Thanks for that it was helpful.

[cfs_too]

.... unable to return to work due to a health problem, my employer wants me to resign my position due to this(which i have no problem with)....

Thanks

 

Hello,

 

I am not an expert by any means, but I have experienced some issues with accrued holiday upon the termination of my employment. I am familiar with the 'stringer' case and other Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) cases, and although not an expert I would be more than happy to give some advice. I have consulted with two solicitors outside of this forum, in regards to holiday pay etc.

 

My history is slightly different to yours, in that I was dismissed on ground of 'capability', i.e. I am too ill to return to work and it was the employer who prompted the dismissal. I was absent for several years, during which I did not take any holiday.

 

However, I also have a relative who was also in poor health, and after only 6 months of absence was 'persuaded' to resign, and in doing so the company did not need to make any payment to him upon his resignation. He had been at the company for many years (20+), and as such missed out on £1000's of pounds he would have been entitled to if they terminated his contract. He left it too late to go to an employment tribunal to get what was rightfully his.

 

I am not trying to scare you in the slightest, my only advice would be not to rush into resigning, especially as it would appear the employer is suggesting it. I would suggest (in addition to trying to sort out your accrued holiday for the current and previous years) to ask a few questions of some of the experts out there on this site, who can advise if resigning is more appropriate to your situation, instead of the company dismissing you.

 

I think that you should take some advice as I think your company might be requesting your resignation so as to avoid responsibility and possibly other benefits which would otherwise be paid to you if they dismissed you on the grounds of incapability.

 

How long have you been an employee of the company?

Do you have a written contract?

Have the company mentioned any Payment in Lieu of Notice (PILON) to you?

 

I hope some others can give you the advice in regards to this.

 

I'll also try to help as much as I can, but this week I may not be able to give that much advice (I have more time available next week) as am preparing my own Employment Tribunal for unpaid holiday both for the current year and past years!

 

Good Luck

 

Me_too

[whitty1975]

Hi, thanks for your reply.

 

I have been employed by the company for 5 yrs and I do have a contract. the company have not made any mention of PILON. I have a disc prolapse in my back the problem kept me off work from November last year at which time the company sent me a letter to say that if i could not return in a acceptable time span they would have to consider terminating my employment, they also asked for permission to access my medical records which i agreed to. they didn't make any contact until the beginning of this November(which i didnt expect as they don't really give a toss about employees but would have been nice for them to ask how I was doing).now I suspect they have only made contact because I have started proceedings against the company for the injuries sustained whilst in there employment because of poor working practices they had in place but that is a different matter.

 

They made contact this November to ask if I would be returning and when I said I wouldn't be able to carry out my duties due to the health problems they said that maybe i should resign my position to enable them to fill the position.(even though they already have somebody in place doing my job and have had for some time, they have given him a different job title but he is carrying out my duties). I suspect they know that if i resign they would have a better chance of not having to pay me any money owed.

 

I am going to contact ACAS and the CAB to see where stand with regard to this matter before I go any further

again thanks for your reply and good luck with your case.

 

If there are any other experts out there who can give me any more input on this it would be greatly appreciated.

[cfs_too]

Hi,

Yes it does sound as though they trying their luck and it's good that you are aware of it too.

There's lots of information out there on the net regarding terminating employment and sickness/ill health.

PILON is something that you would be entitled to if they dismiss you, but I think you wouldn't get it if you resign. At 5 years, that's 5 weeks pay, on top of your other holiday entitlements. Also for the holiday pay search for 'holiday' and a combination of the following 'stringer' 'pereda' 'rawlings' 'haulage' which should give you some interesting reading!

Me_too

[Offkey81]

First off I would be wary of resigning. The fact is that you may be regarded as disabled and can force your work to make adjustments to your job (or offer you a different vacany) that you can perform. Further if they do not follow the correct procedure you ccould have an unfair dismissal claim which is likely to be scuppered by your resignation (not completely but constructive dismissal is tough). To avoid this time, risk and hassle for the company, they have asked you to resign. Therefore, many people in your position dont just get what they are entitled too, they get more. Because if a company wants to elimate these risks/time they will off a comprimise agreement to pay you more money and stop you bringing any claims (buying your legal right to go to employment tribunal). Further again, have you consulted your Personal injury solicitor as keeping your job or giving it up may efect your compensation.

 

Also if you get fired, you may be entitled to full pay throughout your notie period (if your contract says five weeks or less you are entitled to fulll pay for five weeks as you have worked there five years - yipee). You are likly to be entitled to your holiday pay.. this accrues while on sick leave (stringer v hmrc case) but I need to know when your holiday leave year starts and finishes and whether you have made any requests for the pay while you have been off sick - it doesnt really matter whether you resign or they fire you as you are entitled eitherway. You are entitled to 5.6 weeks off a year therefore if you worked 5 days a week (5 x 5.6 = 28) you are entitled to 28 days off a year, accruing 2.33 days a month. So to accure 1.8 you must only work 4 days a week - is this correct?.

 

And please please, please get some legal advice because you can really be taken advantage at this point in time and resigning is one way of doing it.

[whitty1975]

Cheers for the replies guys, I work a 5 day week so would be entitled to 28 days in total, the holiday year runs April to April.

I have consulted the PI solicitor and he advised that as long as the resignation includes that it is on Health grounds that I am resigning it won't affect the claim. I am going to speak to ACAS and CAB before I respond to the company in any way and then possibly get the help of a specialist solicitor to help in the matter.

 

Once again thanks for all the replies and advice

[Offkey81]

I would request the holiday but I have seen some recent employment tribunal caselaw (no appeal tribunal - so open to debate) that states that if you did not make a request for the holiday in the given leave year (so between april 09 to april 10) you may not be entitled but I have seen others cases that state the contrary as one of the judgments I read stated both cases and sided with one (although employment tribunals are not binding on others just influencial), if you make the request for this year (april 2010 to april 2011) I would see no issue. So I would need to bow to someone with greater knowledge in this area and state that I cant say you are definitly enntitled or not entitled for holiday before april 2010 but you should ask anyway and maybe ACAS, CAB or someone else can clear this particular issue up for you and I may be completely wrong (If so please tell me).

[cfs_too]

Hi Offkey81,

 

I think that you have explained this very well, there are ET cases for both sides, and I think once again it depends on the judge lottery on the day.

 

I have read all of these ET cases too, I'm about to submit to the ET myself, as I have to believe the judge on the day will follow the ECJ guidance under Stringer, and some of the more employee favorable ET cases. (He/she might not - but there is a good chance he/she will).

 

I think this applies to everybody in the situation at the moment, the law isn't clear and until it is, the employee's have to be optimistic and believe that the judge in the ET will take on board the stringer decision in the employee's favour as it should be.

 

I've just been through an attempted compromise agreement and I have met with 2 different solicitors in regards to 'stringer' etc, i.e. accrued holiday prior to the current holiday year. It is difficult, on my case the employer completely dismissed Stringer etc - and I think at the current time most employers will dismiss these cases in hope the judge decides in their favour. Of course, the number of cases which settle on this are not publicised so it would be interesting to know how many employer's have settled without it getting to ET.

 

I think in whitty1975's case that this will hopefully sort itself out before the contract of employment is terminated, as whitty1975 is taking the necessary advice.

 

As a note on the current years holiday, I am almost certain the following applies (as I had major issues with this an my employer but I can't really go into detail) - the employer is obliged to make payment for any untaken accrued holiday for the current year anyway, and this is separate from any accrued holiday for previous years (i.e. under stringer etc). I think the key point here, is that if the employment terminates before the end of the current holiday year then the accrued and untaken holiday must be paid anyway. If it isn't, it is a clear deduction of wages and can be taken to ET within the 3 month time limit. (If I am wrong please don't hesitate to let me know and I will correct my statement).

 

Me_too