TUPE Holiday problems...

[Hulmesy]

Hi Guys,

 

I have a problem and was wondering if anybody can help me.

 

I am being transfered to another employer under TUPE regulations on the 1st October 2014. My present employer (Company A) has advised us that we receive our final payment from them on the 30th September this will consist of our salary for September, shift allowance for the period 9/8/14 to 5/9/14 as we are night workers. In addition to this Company A are paying us for shift allowance from 6/9/14 to 30/9/14 and our bonus payments for July August and September. They are also advising that they will be deducting any holidays which we may have overtaken as we are leaving the company 9 months into a leave year. I am in the situation where I have taken my full entitlement for the year which consists of 28 days holiday plus 8 bank holidays plus 2 additional days which I have been given for length of service. This means that the company want to make a deduction from my final salary of 1/4 of my leave for the year which equates to 71.25 hours which would be in excess of £600. Company B is different in the way it works out pay so we will be paid our salary and then shift allowance is paid in arrears, therefore my 1st salary from Company B will be on the 28th October and will be just standard salary and shift allowance would start again from 28th November.

 

My problem is that I took my leave in the early part of the year due to being a small team we can only have 1 person on leave at a time so we plan our leave well in advance so we know when we can take 2 weeks holidays etc. I have no choice in the transfer to Company B and took my leave based on the fact I would be working for the full 12 month period as I have done for the last 4 years. The company now want to make the deduction as a lump sum from my final pay of over £600 which will put me in a very bad financial situation as i have budgeted for bills etc. Normal situations I would expect my normal salary/shift allowance to be paid 30th Sept and then the remaining shift allowance bonus payments and the leave deductions on the 31st October according to the direct.gov website "If a worker has taken more leave than they’re entitled to, their employer must not take money from their final pay unless it’s been agreed beforehand in writing. The rules in this situation should be outlined in the employment contract, company handbook or intranet site."

 

Sorry to waffle on but my question is " Can I do anything regarding this situation as I think it is unfair to make this deduction as I have no choice in the Tupe transfer and have budgeted for 12 months.

[mariefab]

The only time that a deduction for overtaken holidays can lawfully be made is when the employment terminates.

See s.14 of the Working Time Regulations 1998 below, particularly 14(4).

http://www.legislation.gov.uk/uksi/1998/1833/regulation/14/made

 

Your employment will not terminate when the transfer takes effect - it will continue.

That's the single most important purpose of TUPE.

So, as far as your holidays are concerned it should be same as if your present employer had just changed the name of the the Company.

[Hulmesy]

Thanks for your reply, In my situation Company A is saying that effectivly we are ending our employment and are processed as leavers and therefore the leave is calculated pro rata. My leave for the year is 285 hours so i will have to pay back 71.25 hours, when I start at Company B I will then be given a pro rata amount of leave to cover the period 1st October to the 30th November as Company B's leave runs from 1st December to 30 November. Is there anything we can do in relation to this as I have taken my leave based on my needs and I dont require any leave in October or November. The situation is made more complex as we are being Tupe'd over to Company B from Company A but we were originally Tupe'd from Company B to Company A back in 2010. (Basically we were outsourced and are now returning back in house.) So therefore I am still working under Company B's original terms and conditions which were kept as part of the Tupe back in 2010. On company B's terms and conditions there is no mention of having to pay back any leave that has been overtaken if you leave the company. On company A's terms and conditions it says that any overtaken leave will be taken back in final salary. So which would apply to me? I assume that because my contract and leave etc was transfered with me to Company A, i should not have to make this payment.

[mariefab]

They are wrong. A TUPE transfer does not terminate the employment (effectively or otherwise).

See TUPE 4(1) below;

http://www.legislation.gov.uk/uksi/2006/246/regulation/4/made

 

Translation-

It's a transfer. At no point does your employment end, it just continues with Company B as if they'd employed you all along.

 

It doesn't matter which terms apply to you. Company A can only deduct the £600 when your employment ends.

They can't terminate your employment because they want to deduct payment for the overtaken holiday. That would be automatic unfair dismissal.

This *effectively ending your employment* business is nonsense and they should know it.

[Hulmesy]

Thanks mariefab you have been a great help.

 

I will be ringing ACAS on monday as I have a feeling that this will be deducted at the end of the month and the payroll cut off dates are fast approaching.

[Hulmesy]

Another quick one...

 

When we were originally transfer from Company B to Company A we did so in July 2010 so what company A did was gave us an additional 1 months pro rata to cover the additional month as our new allocation would not start till Jan 1st. I therefore think that when we are transfered back to Company B anybody who has used all the annual leave allocation should then start on Company B's new allocation on the 1st December and work the opposite by only deducting 1 month pro rata instead.

[mariefab]

That's what I would expect too.

 

A suggestion for the current issue...

You could print copies of:

WTR 14(4)

http://www.legislation.gov.uk/uksi/1998/1833/regulation/14/made

TUPE 4(1)

http://www.legislation.gov.uk/uksi/2006/246/regulation/4/made

TUPE 7(1)

http://www.legislation.gov.uk/uksi/2006/246/regulation/7/made

 

Add a note stating that you believe that deducting £600 for overtaken holiday would be unlawful because your employment is not terminating.

Present it to your employer.

 

But, it's up to you how you handle this. You know your employer, I don't. If you think they are just unaware of the legislation; showing it to them might speed things up.

 

The ACAS helpline advice can be a bit hit and miss, so come back if you have any concerns.

[Hulmesy]

Again thanks for your advice really appreciated. To be honest the whole process has been a nightmare. I have previously had to make formal grievances to policy changes and issues we have had in the past with company A. I will be making our TUPE rep aware of what you have advised so we can get this issue resolved.