Holiday and Statement of Particulars

[joemaries]

Hi, I am posting on behalf of my girlfriend. She currently works at a petrol garage (non of the big chains) it is a small independently owned garage and she has been employed there for 6 months. She is currently having some issues as she has had no contract or statement of particulars since she started, I know this is illegal but it gets better. She has been told that she gets 20 days holiday a year I also know this is illegal, the boss's response is that he pays double time on bank holidays therefore doesn't have to pay the extra 8 days holiday. I believe that he is talking out of his proverbial but would like someone to confirm this please.

 

My question is how should she approach this as the boss has told he doesn't care about paperwork and I'm pretty sure if she put in a grievance he would a) dismiss it and b) find a reason to sack her. I cannot express how much this guy has no understanding of employment law, his refusal to engage through paperwork and what could come his way as a result, I'm not out to cause problems for the boss but would like my girlfriend to get what she is owed i.e. her holidays

 

Any help is much appreciated,

 

Many Thanks

[Sidewinder]

Very tricky, not least as upsetting the employer might win the argument over holidays but cause a rapid departure from the business for any one of a number of manufactured reasons and without 12 months service there is nothing that your girlfriend could do! Alternatively she could get the additional holiday but lose the extra pay for working on the BH.

 

The employer is certainly talking nonsense. The legal minimum paid holiday entitlement is 5.6 weeks holiday per year, so for somebody working 5 days a week, this would be 28 days. This can include Bank Holidays where they are not worked, but where your girlfriend works on those days, the employer cannot sidestep the holiday requirement by paying double time.

 

In order to enforce this, there would e no option but to raise a grievance, so it becomes a question of how prepared she is to stand up for her rights unfortunately. There is protection from dismissal for an employee asserting a legal right, but very little protection if the employer decided to dispense with her services for any other reason he sees fit. Of course if she were to be dismissed she could then go to a Tribunal and take action for the unpaid holiday and the failure to issue a statement of particulars.

[joemaries]

OK thanks for your reply Sidewinder, as a result she's gonna grind it out until September and get a years service in (Does this increase to 2 years service in April?) then take him to task, Though in the meantime should she ask for a statement of particulars or let him keep digging a grave. Thanks again,

[Sidewinder]

The change to a 2 year requirement for Unfair Dismissal claims will only apply to those employed after April 2012. Anybody employed before that date will still only need 1 year's service, and there will still be no minimum service requirement for cases of discrimination or certain other reasons (eg asserting a statutory right). Of course the fee system, whereby claimants will need to pay an upfront fee when registering a claim might have come in by then, but the service requirement would not change for your girlfriend.

 

By all means she should keep asking for what she is entitled to, but in the absence of a formal statement of basic terms, she should keep all of her payslips safe as this would demonstrate hours of work and other formalities which would serve to prove a contract.