Holiday Pay Owed to Employer

Pollysue

I have taken holiday (annual leave) which was agreed by my employer, however given the fact that I had just started my new job I was not entitled to it, nevertheless my employer paid me. I have now left my job, my employer was unable to make a deduction from my final pay for holiday I owed because I didn’t give any notice. My employer is now claiming I owe them £1,349 for unearned holiday and has served me with a county court claim form for repayment of overpaid holiday and associated national insurance contributions. I have never signed a employment contract with my employer and it was at my employers discretion to pay me for the holiday that I took. I would appreciate some advice please.

Emmzi

if you did not earn the holiday you have to pay it back. your best hope is to agree an installment plan.

liney

You did have a contract: you worked and they paid you.

You are responsible for paying the money back, in much the same way that they would be obliged to pay you untaken holidays if you had left without using them.

I would double check the figure is correct against your entitlement and salary, or do you not dispute their calculations just your liability to pay?

DCFC79

How much extra holiday do they think you took, the employer can do it for the reasons already explained

Uncertain

As stated, a contract does exist.

However, as the employer didn't put it in writing it puts them at a SLIGHT disadvantage.

How much annual holiday was agreed as part of your job? It cannot be less than 28 days per year but it could have been more.

How long did you work there? You accrue holiday for the whole time you were employed, not just full weeks or months regardless of what their normal terms may suggest.

If this adds up to the amount they are claiming you will have a hard job defending their claim. You would somehow have to convince the court that this was a gesture of goodwill and not simply a case of being allowed to take holiday ahead of actually accruing it. Was it?

You should also be aware that they may, theoretically, have a further claim against you for any losses they suffered as a result of you failing to give notice. It is most unusual for such a claim to be made but it sometimes crops up as a tit-for-tat response in the event of another dispute. The would need to show that they took all reasonable steps to minimise their losses and they obviously saved your wages for the notice period.

dini1963

I agree with the others on this thread and especially the point made by uncertain. If you contract states that you should give them notice (and they generally do), then you are technically in breach of contract and they can reclaim losses for that - digging your heels in about the holiday pay could trigger them to seek reparations wider than just holiday pay. Specifically about the holidays I would as the following questions:-

what do you believe my holiday entitlement to have been during the period I worked for you?
how many days do you think I owe you?
how have you calculated the amount that you believe I owe you?

as uncertain says there is an entitlement to holidays and pay (set out on direct.gov.uk), so you would need to check whether their contract & calculations equate to, as a minimum, statutory entitlement.

However it is not so specifically clear how to calculate holiday pay. Are you paid on an hourly rate or salaried? for hourly paid it is generally straightforward - if you had 37 hours off work above your entitlement then you owe 37 hours pay. However for salaried staff most employers calculate at salary/52.14/37 (assuming a 37 hour week) to work out the hourly rate, however it can be done by salary/365/7.4 (again assuming a 37 hour week) - this would give hourly rates for, say, £25,000 salary of £12.96 using the first method compared to £9.26 using the 2nd. The more usual is the first (and therefore higher hourly rate), however it could give you some wiggle room with your ex employer if you make an offer to settle on the 2nd rate?

DVardysShadow

Pollysue wrote: »

I would appreciate some advice please.

Have they gone straight to a court claim or is there already some correspondence? Are the court papers stamped by the court or did they come direct from the employer? Have they given you a breakdown of how they calculate the amount?

All of these questions make a difference to how you should deal with the situation, but the bottom line is you have been overpaid and you should pay the money back

Hammyman

Just be aware that as you walked off the job, the employer is also entitled to sue you for any costs that involves such as hiring in temporary agency staff to cover. Does any of that £1300 include that?

Uncertain

Hammyman wrote: »

Just be aware that as you walked off the job, the employer is also entitled to sue you for any costs that involves such as hiring in temporary agency staff to cover. Does any of that £1300 include that?

You just love overstating this point at every opportunity don't you?

I have correctly explained the very slight risk in post No 5.

It is very rare indeed for such a claim to be successfully made in "ordinary" jobs. It is nothing like as simple being "entitled to sue you for any costs that involves such as hiring in temporary agency staff to cover". To have any chance of winning the employer would have to show that they had taken all reasonable steps to minimise their losses etc.

A member of staff can fall ill, legally take time off without notice for family emergencies or even die. A well run business has to have some contingency for the unexpected so this would be taken into account as well.

I imagine, if push comes to shove and the OP thinks back, they were unwell and took 5 days self certificated sick leave. Also, they will suddenly remember where he / she put the copy of the resignation letter they dutifully posted giving the statutory notice!

Get real!

Googlewhacker

Uncertain wrote: »

You just love overstating this point at every opportunity don't you?

I have correctly explained the very slight risk in post No 5.

It is very rare indeed for such a claim to be successfully made in "ordinary" jobs. It is nothing like as simple being "entitled to sue you for any costs that involves such as hiring in temporary agency staff to cover". To have any chance of winning the employer would have to show that they had taken all reasonable steps to minimise their losses etc.

A member of staff can fall ill, legally take time off without notice for family emergencies or even die. A well run business has to have some contingency for the unexpected so this would be taken into account as well.

I imagine, if push comes to shove and the OP thinks back, they were unwell and took 5 days self certificated sick leave. Also, they will suddenly remember where he / she put the copy of the resignation letter they dutifully posted giving the statutory notice!

Get real!

To be fair Uncertain, Hammyman does make a valid point, it has already gone to court so its a fair question to ask if any of the cost is from costs of replacing the OP.

This situation is differant to the norm where people ask about leaving without giving notice so the question is required.

And tut tut suggesting lying....ever heard of the phrase 'stop digging'?

Uncertain

Googlewhacker wrote: »

And tut tut suggesting lying

Perish the thought!

I made no such suggestion, I was merely pointing out to Hammyman what happens in the real world......