Employment Tribunal

[Lokur]

Hi all,

 

Last year I handed in my notice after a long period of conflict with my new manager. Taking up a new role with another company.

I was first told that as I had left within the 2 year period post my training having completed that I was now liable to repay all training costs paid for by my employer. The employer in question held no such written contract with me, and I had never entered into an agreement which allowed them to reclaim any funds.

After a frantic search by the employer the following came up:

 

- They had no contract allowing them to do so.

- They had 2 different study policies, which allows them to do it but they both state they require written agreement.

 

The company then agreed that no repayments for this was due, but as they found this unfair and came up with another ploy to recoup some funds. They stated that my garden leave would be converted to leave, and I would not be paid my accrued leave at the end of my notice period.

 

This accrued leave consisted of: 9.5 days of banked holidays from previous years that I had been unable to take due to work requirements, and 7 days of accrued leave in the year. A total of 16.5 days.

The notice given for the holiday was 2 days into the period requested by the company, and the working time regulations state that you have to give twice the length of notice as holiday.

The company is defending on the following basis:

The contractual holiday is 25 days per annum plus bank holidays. Therefor only 20 days per annum is statutory leave, and the amount over that is enhanced holiday by the company.

 

They then claim that the Working Time regulations don't apply to those days.They therefor admits that 1.5 days was requested without notice, and the remainder is denied on the basis that the Working Time Regulations don't apply to banked holidays nor the extra holidays above statutory holiday.

 

The contract paragraph states:

You are entitled to 25 days paid holiday per annum.

I have paid to open a tribunal on the basis that working time regulations proscribed a statutory notice of twice the length of holiday.

 

Their defence implies that the enhanced leave isn't covered, and now have to decide wether I want the case to go forward to a full tribunal at the cost of £230 or to remiss the case based on their defence.

 

Feel free to ask questions as I might have missed something.

Edited March 24, 2015 by honeybee13
Paras.

[SabreSheep]

It prob would have been cheaper to issue the claim in a small claims court

[Lokur]

Small Claims might have been cheaper, but they can't raise a free counter claim at the Tribunal as it's a statutory Tort. At least that was what I was told.

[steampowered]

Before even getting into technical arguments about the Working Time Directive, what does the contract say? Does the contract have a provision which says they can require you to take any outstanding leave during your notice period?

[Lokur]

Before even getting into technical arguments about the Working Time Directive, what does the contract say? Does the contract have a provision which says they can require you to take any outstanding leave during your notice period?

 

No such clause exist in the contract.

[steampowered]

I think your starting position should be that they are liable for all of it.

 

If the leave is covered by the WTR, they did not give the necessary notice under Regulation 15 of the WTR. The WTR requires 5.6 weeks' of paid leave per year (which can include bank holidays).

 

If the leave is not treated as leave covered by the WTR, then I think they would need to have a basis in the employment contract for being able to tell you when to take your leave. If there is no such provision then argue that they have no power to dictate that, at least not without giving notice at least equivalent to the notice required under the WTR.

 

On the more technical side you may also refer to the Working Time (Amendment) Regulations 2007 http://www.legislation.gov.uk/uksi/2007/2079/regulation/2/made, which increased the period of leave required from 4 weeks to 5.6 weeks, and specifically Regulation 13A sub-section (7) which broadly provides for up to 1.6 weeks annual leave per year to be carried over which would be treated as leave under the WTR.

[Lokur]

It appears then as I quoted Working Time Regulations of 1998 they have literally downloaded that and used it's wording for their defence, not realising the amendment of 2007? As it's their opinion that Statutory holiday is 20 days, not 28 as per the 2007 amendment.Should be interesting to discuss this in tribunal then.

[steampowered]

Yes. I can see how they make that mistake to be honest. Usually, the website www.legislation.gov.uk will show you the latest form of legislation including all the amendments which have been made to it.

 

For some unknown reason, the WTR 1998 is only shown on that website in its original form, even though it has been amended several times. Unless you have access to specialist legal resources (and even if you do ....) it is very difficult to know what has been amended and what hasn't.

 

Back in 1998 the right to annual leave was four weeks. Now the right is 5.6 weeks, which would be 28 days in relation to an employee who works 5 days per week. However do note that bank holidays can be counted towards that entitlement - so 20 days plus bank holidays would be fine.

 

Note that the carry forward right mentioned in my other post refers to 'relevant agreement', and if you go to the interepretation section of the main WTR that has a very specific meaning as a written agreement between employer and employee. So you would want to find something in writing at least.

[Lokur]

So they could still argue that the actual holiday allowance is 20 days, plus 5 days enhanced holiday and bank holidays?

[steampowered]

So they could still argue that the actual holiday allowance is 20 days, plus 5 days enhanced holiday and bank holidays?

Yes.

 

But 'enhanced' pay just means it is leave you are entitled to under your contract rather than under the WTR. It doesn't mean they can do whatever on earth they want with it. If your contract is unclear, then any ambiguity should be construed against the employer.