Holiday Entitlement and Bank Holidays

[akashi]

Hi,

 

I work 4 days a week and therefore entitled to 22.4 days holiday (rounded to 23 days) from 2011 to 2014.

 

A per my contract and through custom and practice, I receive double rate for working on Bank Holidays since 2009.

 

In 2015, I worked 8 Bank Holidays and these were paid at double rate. However, that year the management had reduced my holiday entitlement by 8 days. Their reason was that I was paid double on Bank Holidays, this rate was as part "payment in lieu" for a holiday entitlement.

 

My office is open through out the year and I work every Bank Holiday each year and this never effected my statutory holiday entitlement of 5.6 weeks (23 days)

 

After writing my grievance and giving my employer plenty of opportunities to pay me the correct entitlement, I have now filled for Employment Tribunal and the case was accepted.

 

Do you guys thing I have a good chance of winning this case? I have payslips to prove I have received 23 days holiday and also double rate for Bank Holidays in the past.

 

Look forward to your input.

[Guest topcat14]

In my opinion your holiday entitlement is being reduced to 15 days which would equate to less then the 5.6 weeks pro rata, so yes, i believe you have a good case.

 

Are you contracted to work on a Monday & Friday (this is your normal pattern)

 

Can you work any other day of the week on the weeks where a bank holiday falls, and therefore choose not or you are not asked to. The Judge may ask this at the hearing.

[goodatresearch]

The law does not allow employers and employees to contract out of statutory holiday entitlement therefore their payment in lieu argument argument has no legal merit at all. The only exception is following termination where the employer pays you for holds not taken but accrued.

[goodatresearch]

Forgot to mention, you will need to quote the Working Times Regulations 1998, Part 2, 13) (9) (b). If you Google it you should be able to read the regs and relevant section.

[akashi]

Thanks for all the information.

 

It is shocking how ignorant my employer is when I asked them to contact ACAS to seek advice as they were breaking employment law. They told me they were following ACAS guidelines for holiday entitlement.

 

I have lost my contract paper and have requested it multiple times from my employer but they keep ignoring my request for a copy. I have a feeling they do not have a copy either as I was TUPE'd over back in 2011.

 

Without the contract paper, I can prove past holiday entitlements and bank holiday rates through copies of payslips.

 

Can I force the employer to provide a copy of my contract?

 

Thanks.

[akashi]

Can you work any other day of the week on the weeks where a bank holiday falls, and therefore choose not or you are not asked to. The Judge may ask this at the hearing.

 

I normally work weekdays and I do not see why I should avoid working on bank holidays where I am entitled to double rate which is a great incentive. This has never been an issue between 2009 to 2014 and no reason to start now.

[Guest topcat14]

I agree you should not have to change your days off because the working week has a bank holiday in it. I was merely trying to establish if there was any room for movement in those weeks, because the employer may say that there was that option, and the Judge may ask the question.

 

Do you have any time sheets or the like, that could prove you worked particular bank holidays, and tie that with your payslip as evidence that you were paid the rate for those days when you worked?

 

If all else fails, could you call a witness with the same contract as you ?

 

If you cannot prove it, and neither the employer can produce the TUPE'd terms, then an ET judge will have to take a view on who he or she believes.

 

Having said that I firmly believe you have a strong case.

[akashi]

Do you have any time sheets or the like, that could prove you worked particular bank holidays, and tie that with your payslip as evidence that you were paid the rate for those days when you worked?

 

Thanks for your vote of confidence, much appreciated.

 

I have time sheets dating back to 2011 and also payslips which supports full 5.6 weeks holiday entitlement being given as well as double rate for all bank holidays worked.

 

If I decided not to work on a bank holiday, that shift would be given to a colleague and I will left out of pocket.

[goodatresearch]

Your complicating matters to much. They cannot reduce your statutory holidays and argue payments in lieu its unlawful.

[akashi]

Your complicating matters to much. They cannot reduce your statutory holidays and argue payments in lieu its unlawful.

 

Thanks, I wanted to be prepared and cover everything.

[goodatresearch]

Good look, let's us know how you go on

[akashi]

UPDATE:

 

After a stressful day from 10:00 - 17:00, my case was dismissed on a technicality.

 

Although I proved my employer only told me I had 17 days reaming instead of 25 days (accrued) on an email, the respondent's expensive barrister argued I did not actually put in a 'request' for the 8 days and therefore my employer hasn't actually refused any holiday.

 

As the year has ended, the regulations prohibits annual leave being carried over, I have now lost them. Barrister told judge she could not offer these now as it will be 'payment in lieu'

 

Judge said if I did a holiday application and then it was refused, there would be grounds.

 

Either work for a decent company or learn the employment law to tackle these problems.

[goodatresearch]

Absolutely awful. Why would you put a holiday form in if you had been told in writing you weren't entitled.

 

UPDATE:

 

After a stressful day from 10:00 - 17:00, my case was dismissed on a technicality.

 

Although I proved my employer only told me I had 17 days reaming instead of 25 days (accrued) on an email, the respondent's expensive barrister argued I did not actually put in a 'request' for the 8 days and therefore my employer hasn't actually refused any holiday.

 

As the year has ended, the regulations prohibits annual leave being carried over, I have now lost them. Barrister told judge she could not offer these now as it will be 'payment in lieu'

 

Judge said if I did a holiday application and then it was refused, there would be grounds.

 

Either work for a decent company or learn the employment law to tackle these problems.

[goodatresearch]

In a round about way their barrister had admitted they haven't complied with statutory hol requirements. I wonder if they could be fined on the basis of your evidence?

[akashi]

There are over 100 employees working for the same company who have had their basic statutory holiday entitlement reduced. They all complaint at the the time and now have accepted this as a way forward.

 

My employer lied under oath saying they recognise 5.6 weeks statutory entitlement and all employees are given this entitlement.

 

Hopefully they will have learnt from this and provide the statutory entitlement to all employees this year forward.

 

I was the only person who took it all the way to the Employment Tribunal and as a result everyone else will now benefit to.

Edited May 25, 2016 by akashi