Holiday entitlement being forced away from me

worker_bee

Hi, Since 200X I have worked fulltime for the NHS. I switched to flexible working hours in 2006, which was agreed to be term time between me and my employer. The way the agreement was made meant I was entitled to annual leave of xx days (outside of term time) as per the hours I worked. It has been fine like this ever since.

In the last year, my employers have tried to take this from me and have now forced a change upon me. I would like to know if this is possible or even legal? I have put the email exchange below to highlight what has been happening recently. Are there any experts out there who could advise on my next steps? I would also like to point out that this has also happened while I have been on sick leave!

Orignal request for holiday leave:

[omitted info]...My doctor has signed me off work for X weeks...[omitted info] I plan to return to work after the Easter holidays...[omitted info].

Reply from a very senior Manager???

Your request for annual leave following your current period of sickness has been discussed by the management team and I regret to advise that we are unable to grant this request for operational reasons. xxx is currently short of staff and your extended absence has made it difficult for us to grant annual leave for members of staff whilst you have been away and some of them have now requested time off in March. Therefore you will be required to return to work following the expiry of your current medical certificate in order for us to allow other members of staff to take time off.

Obviously you are still entitled to the 13 days annual leave you have not taken this year and you are able to carry this over to next year. However as I am sure you recall, [omitted info] has previously discussed with you that going forwards from 1st April, your annual leave accrued during 2012/13 will no longer be available to you outside the term time weeks (apart from 5 days for emergencies and for 2012/13 only the 13 days you are carrying over from this year) which gives you a total of 18 days annual leave next year.

All other accrued days (17) will be paid to you, as due to service requirements we can no longer accommodate you taking annual leave in addition to the 13/14 weeks [THIS IS UNPAID] you are away from work during term time holidays and we also need to ensure that both staff working term time contracts are treated equally.

[omitted info]


My reply:

I have received your email and accept that my holiday request has been declined for operational reasons. I had put this request in as I understand it was the trust's policy I either take my remaining leave before the end of March or lose anything over 5 days. I was unaware that I could carry over all of my remaining leave.

With regards to previous discussions with [omitted info], I reiterate that I do not agree to forfeit my annual holiday entitlement. Can you please show me the classification on where it states that I am allowed to be paid for my annual leave entitlement without me physically taking it. I believe what you are asking of me is against the trusts policy and most likely the law! (see [omitted info] the trusts Annual Leave Policy and Procedure).

I would also like to ask that you do not bring up the conditions of my contract again whenever I make a request to the management team. As stated previously, this makes me feel as if I am being penalised and, at worse; discriminated against for working term time or that it may be a hindrance to my development within xxx

Email from very senior manager AND their manager CCd:

Please see my response to the points in your email. For information, Term Time Working agreements no longer exist, the new term for the type of hours you work is Annualised Hours.

[copy of my comments above] Carrying over annual leave in addition to the 5 days allowed under Trust policy is at the discretion of the Trust and in certain circumstances this can be facilitated for operational reasons, as explained in my original email, or whereby the employee does not return in time to take the leave owed before the end of the leave year.

[copy of my comments above] Following your discussion with xxx I was advised that you had been given one year’s notice of the intention to pay your annual leave entitlement as part of your salary (with the exception of 5 days for emergencies). This is NOT against Trust policy nor is it illegal. I also do not believe we are treating you unfairly, as we are bringing you in line with the same contract worked by another colleague at xxx who also does Annualised Hours to facilitate term time working. Furthermore, in deference to your situation, we allowed you to continue to take the leave outside of the term time weeks for a further 12 months as you made it clear that you had made arrangements for the use of this leave during 2011/12. I believe this 12 month grace period was more than generous as we were only obliged to give you contractual notice of this change (4 weeks). I would also like to point out that by accepting an Annualised Hours arrangement you have forfeited the right to have your annual leave applied under section 2.12 of the Trust’s Annual Leave Policy (below) as this section applies to staff working on a standard Trust contract.

2.12 Payment in lieu of annual leave that has not been taken will not be made unless the employee is leaving the service.

[copy of my comments above] As mentioned above your “contract” with the Trust is on a full time basis and the “Agreement” to work flexibly is reviewable annually, it is not an automatic right and it can be withdrawn with contractual notice being given (4 weeks).
As mentioned in my previous email, xxx is no longer able to accommodate you taking leave outside the term time holidays, but we appreciate that on occasion you may need to attend to business or take a day off for other reasons whilst your children are at school. For this reason we have allowed both yourself and the other staff member working Annualised Hours to keep 5 days of leave entitlement for this purpose. Any remaining days owed to you will be paid to you as additional salary. As you have 13 days to carry over from this year, along with the 5 days leave for “emergencies” outside term time you are still able to take 18 days leave in addition to your term time leave during 2012/13.

I have copied the information on Annualised Hours from the Flexible Working Policy below.

Annualised Hours

Definition

An annualised hours system is a flexible work pattern where the employee agrees with his/her manager that he/she will work for a set number of hours over a year.

Example: a 37.5-hour week works out at 1,702.5 hours over the year (taking into account annual leave entitlements and bank holidays). The employee agrees to work this number of hours in total, but it may be that they work different hours on a seasonal basis, in some weeks working 45 hours, some weeks only for 10 and some weeks none. Annualised hours can apply to caseload or project work that are time bound or to term-time only working. Here the employee works during term-time only and is allowed extended leave to coincide with school holidays. However his/her pay will be averaged out over the year Annualised hours involve organising working time flexibly across a 12- month period rather than on the basis of a standard working week. As well as basic rostered hours, a number of additional or ‘reserve’ hours are often included in the annual hours total. Employees receive their salaries in equal monthly instalments, irrespective of the actual number of hours worked in any particular

period. Formula to calculate annual hours {(Number of weeks per year x hours worked per week) – [(annual leave x hours worked per day) - (bank holidays x hours worked per day)} Generally a 52.14 week is used. Given a basic working week of 37.5 hours and a basic working day of 7.5, 27 days annual leave and 8 days Bank Holidays, the total annualised hours can be calculated as follows:

Multiply basic week of 37.5 hours by 52.14 to give an annual total of: 37.5 x 52.14 1955.25 Less Annual Leave 27 x 7.5 (202.5) Less Bank Holiday 8 x 7.5 (60) Total hours per year 1692.75

From 1st April 2012, 17 days of your annual leave will be paid to you as additional salary and 5 days will remain available for your use outside of term time weeks. I will arrange for the Manager to write to you formerly to confirm this change and a record will be kept on your staff file. In addition, your Annualised Hours arrangement will be reviewed annually with the Nursery Manager to allow both parties to review how the arrangement is working for each of them, and you should be aware that the Trust reserves the right to withdraw this arrangement with due contractual notice provided to you, or if the provision to work Annualised Hours is withdrawn by the Trust at any time.

I know that was a mouthful, but would love to know all of your comments. I have been working like this for the last 6yrs and it has never been an issue. I have children and the annual leave is to make up for the days they are sick outside of the holidays and also for me to have some 'me time'. This was the reasoning behind them approving the arrangement in the first place!

With regards to the comments made above; I have not had 1yrs notice and have not been informed of my flexible working agreement ever being changed to "annualised hours".

Thanks,
worker_bee

getmore4less

There is a lot to read there and complicaded by the NHS holiday allowances being very generous

ON face with quick read I think this is OK going forward as long as you have the required time off at some point in the holiday year.

An employer has always had the right to say when you take ALL your holidays.

I need another read to check the transient period.

There may be an issue if you have not had your statutory minimum during the holliday year.

I will try another read tomorrow.

worker_bee

It definitely is a lot to read. I think there is a lot of contradictory info in there too. It has not been an issue for the last 6yrs. I am on unpaid leave during the school holidays and have paid annual leave for the weeks I do work. They now want to remove all of my paid annual leave apart from 5 days "for emergencies". I want things to remain as they were and not have a new 'agreement' forced upon me without my consent. Although I will get extra money, the time is more important to me.

jonnyd281

I think I get the idea, the OP only works during term time, and has all the school holidays off, so what the NHS has done, is paid them full time salary over the twelve months, plus thier holiday pay, however they have to work the hours required during term time.

I think what they are saying is that your leave (all bar 5 days) are taken up by the school holidays, and the rest of the school holidays are made up by working extra hours during term time.

JodyBPM

I think what they are saying is that all bar 5 days of your leave must be taken during the school holiday period, which as a previous poster has already mentioned, they are perfectly within their rights to do. You are taking, and being paid for, your annual leave, its not been stolen, you are simply being directed to take it during the school holiday period.

To be honest, it all seems perfectly fair to me. It seems that they are bending over backwards to be flexible, allowing you first "dibs" on not working the 13/14 weeks per year of your choice (your unpaid leave), plus 5 days to give you flexibility for emergencies, but directing you to take 17 days at a time convenient to them (in the school holiday period). What it boils down to is that you have approx 18 weeks leave (paid plus unpaid), you get to select when you take 15 weeks of it, and they direct when you take the other 3 weeks of it. To be fair, a term time only annualized hours contract is actually quite a difficult thing for an employer to accomodate in a non term time service, ensuring that all other staff can take holiday etc too.

Surely this means that you will actually get a "payrise" of approx 17 days pay, as you will be taking 17 days less unpaid leave, as you will be taking it as paid annual leave.

I wouldn't push it TBH, or its likely they will say that your annualized hours flexible working pattern is not working operationally, and they may choose to remove this priviledge, which they can do by simply giving your 4 weeks notice.

getmore4less

can you clarify

When do you work? (term time?) how many weeks/days?
Can you take holidays during term time?
What holiday pay(weeks/days/hours) do you get and when do you take those holidays?
What weeks do you not get paid?

How are you actualy paid?

nearlyrich

I think they have done more than they needed to to accommodate your plans when they could have just given 4 weeks notice and gone with this arrangement last year. "Me time" is a luxury when you are a parent, but you still have 5 days that you can use to do what you want when you want I'm not sure what the problem is?

Notmyrealname

nearlyrich wrote: »

I think they have done more than they needed to to accommodate your plans when they could have just given 4 weeks notice and gone with this arrangement last year. "Me time" is a luxury when you are a parent, but you still have 5 days that you can use to do what you want when you want I'm not sure what the problem is?

There isn't a problem other than the typical public sector attitude of wanting ones cake and eating it. YOUR EMPLOYER HAS NOT TAKEN ANYTHING AWAY FROM YOU. IN EFFECT THEY HAVE TOLD YOU WHEN YOU ARE TAKING YOUR HOLIDAYS WHICH THEY ARE ENTITLED TO DO BY LAW.

If I were an employer with an employee like you I would be stating your paid holidays are taken in the school holidays. They have effectively done that by rolling up your holiday pay into your normal pay.

In law your employer is entitled to tell you when you can take your holidays.

Your choices are really really simple.

1) Agree to it.
2) Don't agree to it. If you don't agree to it you have two options:
a) Resign
b) continue to work under protest however there is a time limit on how long you can do that.
If you don't do either of the above and continue to work you are deemed to have accepted it.

Ultimately if you don't agree to it your employer can simply end your contract. They'll then offer you a new one with the terms they've already told you and you either agree or go sign on the dole.

Notmyrealname

worker_bee wrote: »

It definitely is a lot to read. I think there is a lot of contradictory info in there too. It has not been an issue for the last 6yrs. I am on unpaid leave during the school holidays and have paid annual leave for the weeks I do work. They now want to remove all of my paid annual leave apart from 5 days "for emergencies". I want things to remain as they were and not have a new 'agreement' forced upon me without my consent. Although I will get extra money, the time is more important to me.

And what about the part of the letter:

Furthermore, in deference to your situation, we allowed you to continue to take the leave outside of the term time weeks for a further 12 months as you made it clear that you had made arrangements for the use of this leave during 2011/12.

Quite simply, your employers have been far more than generous and you're being very selfish. Personally I'd be finding a way to sack your ungrateful backside.

I hope that happens because you'd be in for one hell of a shock in the private sector. There would not be one single employer in the private sector in the entire UK who would be as accommodating as your current one has been. You might want to think about that when you're whining you've been badly done by.

worker_bee

I work term time and get 13 weeks unpaid leave. I physically work 37.5 hours a week over 5 days but actually get paid for 28.15 hours a week so my pay equals the same every month even when I am off for the school holidays.

Since the past 6 years I have been doing this I have been getting 13weeks unpaid leave for the school holidays and 22 days annual leave to take during the term time ( while the children are at school). All these years it has never been a problem, but because there is now someone else who has been given term time within the last year who has been given the 5 days annual leave they now want to make me have the same contract as that person.

It is not about receiving extra pay its about having that time off as I have had it for the last 6 years. I am only trying to keep what I have been given and entitled to.

Some of the comments here seem to imply the workplace is doing me a favour:
!
1) When I applied to work term time 6yrs ago, I had two CHOICES: Take my annual leave and have my holiday included within that (meaning less time unpaid) OR Take the school holidays fully unpaid and have holidays pro rata. I opted for the latter. I do not see this as having my cake and eating it. I applied for it, it was accepted and agreed. This was written into my contract and the policy states this is a PERMANENT change. On the flip side, once accepted, I cannot go back to my old full-time position.
!
2) Annualised hours are for new people coming into the trust. This is NOT what I have. They now want to remove my old terms and conditions and put me onto the new one - seeing some of the responses on here, it seems I will have to work under protest.
!
Thanks for the help so far, hopefully I’m not coming across as rude or arrogant, I would just like to know my options.

JodyBPM

I understand your frustration, as you had a work pattern that worked for you which you have been doing for the last 6 years, and now it is changing.

However, employers can change terms and conditions giving 4 weeks notice. Your employer has actually given you 12 months notice of the change, so they are being very generous indeed in that respect. If they wanted to, they could withdraw your annualized hours arrangement with 4 weeks notice, and their sentence "In addition, your Annualised Hours arrangement will be reviewed annually with the Nursery Manager to allow both parties to review how the arrangement is working for each of them, and you should be aware that the Trust reserves the right to withdraw this arrangement with due contractual notice provided to you, or if the provision to work Annualised Hours is withdrawn by the Trust at any time." suggests to me that they are aware of this, and will do so if you keep causing a fuss over this matter. Simply put, if you make the annualized work arrangement difficult to run, they will simply decide to withdraw it, and make you work 28.15 hours a week throughout the whole year, which they would be perfectly within their rights to do simply by giving you 4 weeks notice.

Thinking about it from an operational point of view, it is far better and fairer for them (and for your colleagues) for you to take your leave outside of term time. You mention it is a nursery setting, where presumably there are ratios that they need to adhere to - every time you take a holiday day in term time, it means that one of your colleagues cannot. You already have the full school holiday period off, so this way, it ensures you are not blocking other colleagues from taking their leave during the term time. Their offer of 5 term time leave days to cover emergencies is also very generous, and shows that they are trying to be reasonable.

In a nutshell, you may not like it (understandably) but you have no choice but to accept it. Your employers are not doing anything wrong, and indeed are most likely working in the best interest of ALL of their employees.

On the bright side, you should see an increase in your gross pay of around 10% (give or take a % or two, very rough workings...)