holiday rights and contract changes

wilfordkenton

hello all, this is my first post on MSE forums. I have been an avid reader for a good while but have never had anything of interest to post until now.
my wife works as a chef/cook in a small business. she has worked for them for over 5 years now. until now she loved her job, but recently things have been changing. now i'm fully aware that times are hard and employers are tightening their belts. but what are your thoughts on this?
when my wife took the role with the company she told them that I, her husband, can only have holidays at certain times of the year. we have 3 children all in fulltime education. she is entitled to 5 weeks holiday per year.
she never received a contract of employment, it is assumed a verbal contract was in place.
this year, as we have every year since she worked for them, we have taken a long weekend in march, a week in june, 2 weeks in august, and a long weekend end of september and finally a long weekend end of october. this has never been a problem before. a payslip giving holdiay has always covered our time away.
just before we went away at the beginning of august, my wife was told she would have to take 3 weeks holiday in january. (all our holidays are booked well in advance, to take advantage of early bird bookings). on our return my wife has returned to work and gone to collect her holiday pay to find the envelope empty with a not stating she is not entitled to any as holidays will now be paid pro-rata. (ensuring staff have 3 weeks for january i assume)
so now we will have to cancel our 2 long weekends because my wife will not have accrued enough leave, and we have come back off our holidays to her having no wages. never before has this been a problem.
my questions to the people on MSE:
is this a lawful change to employment terms?
should she of been given more notice?
does she have any rights, because she doesn't have a written contract?
although it is not written in a contract, can an arguement be made because of historical rights? its always happened so therefore have both employer and employee accepted it as a term of employment?
from my standpoint, I cannot take holidays in january, the kids can not have time out of school in january, and who wants a holiday in january as you'd have to travel some distance to get some sunshine? if this had been the terms of employment, my wife would never have taken the job.

your thoughts and guidance in this matter will be greatly appreciated, my wife is distraught and has cried all day, i however am fuming

many thanks in advance,

rob

paddedjohn

Firstly you r wife is entitled to 5.6 weeks not 5, does she get bank hols on top of this?

The employer can dictate when the holidays are taken as long as they allow them all to be taken in the holiday year. Has your wife spoken to her bosses about the recent changes?


Regardless wether the company is tightening its belt, how does this save them money?

skintandscared_2

I really hope someone with knowledge in this area can answer you properly soon. I have a horrible feeling that employers CAN tell you when you can take holiday but I'd be amazed if they are allowed to "move the goalposts" like this while you are already on holiday. Your wife should, at the very least, been given the option of cancelling the holiday you have just taken if she'd known the implications of taking it! I would be fuming too!

KiKi

wilfordkenton wrote: »

my wife has returned to work and gone to collect her holiday pay to find the envelope empty with a not stating she is not entitled to any as holidays will now be paid pro-rata. (ensuring staff have 3 weeks for january i assume)

I don't understand what this means. You mean that the leave year runs Jan-Dec, and she'll only get paid holiday pay as it accrues? If that's the case, she should still receive the same pay every month anyway - she just won't be able to *take* it until it's accrued.

Either way, they cannot change the rules whilst she's away. She is entitled to 28 days PAID leave (assuming full time, and including Bank Hols) and they cannot NOT pay it; that is unlawful. If they agreed the holiday and allowed her to take it, it has to be paid, end of. Are they saying this was unpaid leave??

so now we will have to cancel our 2 long weekends because my wife will not have accrued enough leave, and we have come back off our holidays to her having no wages. never before has this been a problem.
my questions to the people on MSE:
is this a lawful change to employment terms?

I'd argue it's not a change of terms. Employers can dictate as and when employees take their leave. If they insist that it has to accrue first, then they're going to find that they have a problem come December when everyone will be taking New Year's Eve off.

But they can do it, yes.

should she of been given more notice?

For the three weeks taken - yes. They must pay her for that. They can't change the approach (approach is not the same as T&Cs) to accrued leave, allow her to take AL then not pay her. For any other leave, no. Although it would be the decent thing to do it, they legally don't need to as it's not a contractual change.

does she have any rights, because she doesn't have a written contract?

She does have a contract, written or otherwise. Her rights are that she must be paid for 28 days PAID leave a year, inc BHs. That includes the ones just taken.

although it is not written in a contract, can an arguement be made because of historical rights? its always happened so therefore have both employer and employee accepted it as a term of employment?

I think you'll find it's too weak an argument. They will simply argue they allowed it as it suited them; now it doesn't.

The employer has always had a right to let employees take leave when it suits the employer, always.

There's a difference between "we're changing the number of days you can take" (which is contractual, requiring notice, and possibly breach of contract as well as issues around custom and practice) to "it was okay for you to take holiday in January last year; this year it's not". They're not stopping you taking holiday - just not when you happen to want to go.


I would go in tomorrow, and ask why this has happened. It's possibly a knee-jerk reaction to someone leaving whilst owing AL, and they think this is an appropriate response. I'd also say you've taken legal advice, and as the recent leave was approved and the approach to leave hadn't changed at that point, she must be paid immediately.

She might also want to ask how they're going to manage this, as - assuming everyone has the same leave year - most people won't take any holiday until the second half of the year, which is likely to cause staffing problems, no?

Lastly, please make sure she has 28 days paid leave inc BHs, not just 25. 25 is not lawful.

Sorry that's not what you want to hear, but the employer will have the upper hand here - although I think it's a potentially stupid approach which will cause them issues.

KiKi

KiKi

Sorry, reflecting and coming back...

I'd strongly suggest your wife talks to her manager to find out why this is happening. It doesn't seem to make sense to me, and it may be that there is some flexibility for leave already booked. If she can put a business case for her leave (ie, everyone will be wanting leave at the same time in the second half of the year!!) she may be able to persuade them.

I really don't see how this helps them cut their budgets. I can only see how it ends up with a huge staffing issue. It really doesn't sound like an overreaction to a situation(s), to me.

Talking is probably the best way to go, with a reasonable argument. Then if it doesn't work, the whole "taken legal advice, you owe me money" speech.

Do you think it's possible they're so hard up that they can't pay her?

Sambucus_Nigra

KiKi wrote: »

Employers can dictate as and when employees take their leave. If they insist that it has to accrue first, then they're going to find that they have a problem come December when everyone will be taking New Year's Eve off.

They can only insist on accrual in the first year of employment...

http://www.direct.gov.uk/en/Employment/Employees/Timeoffandholidays/DG_171945

KiKi

Sambucus_Nigra wrote: »

They can only insist on accrual in the first year of employment...

http://www.direct.gov.uk/en/Employment/Employees/Timeoffandholidays/DG_171945

a) I didn't know that, interesting, thanks!
b) I'm not sure that is what the OP is saying, but it's what I took from their post
c) The employer can still say dictate holiday is taken

However, if they *are* running an accrual system, then that gives the OP a better argument...although they employer can still say no to the holiday.

Savvy_Sue

paddedjohn wrote: »

Regardless wether the company is tightening its belt, how does this save them money?

Several ways, IMO: if they close completely for 3 weeks in January they give all staff paid leave at that time, and that's 3 weeks x however many staff members they have that they don't have to organise cover for staff holidays.

If those are 'slow' weeks anyway, then they're not making a loss in those weeks.

They also save on food orders, utility bills etc.

getmore4less

The OP needs to find out exactly what is happening,

the fact so far

when my wife took the role with the company she told them that I, her husband, can only have holidays at certain times of the year

what agreement was actualy made?

she is entitled to 5 weeks holiday per year.

Needs clarifying if this include BH, statutory min is 5.6 weeks as has been said.

just before we went away at the beginning of august, my wife was told she would have to take 3 weeks holiday in january.

That is more than sufficent advanced notice for the employer to fix some holidays

what is not clear is the holiday year so which holiday year allowance those 3 weeks will come from.

on our return my wife has returned to work and gone to collect her holiday pay to find the envelope empty with a not stating she is not entitled to any as holidays will now be paid pro-rata. (ensuring staff have 3 weeks for january i assume)

Don't asume anything find out why this has not been taken from the holiday allowance and paid. also find out what they mean by pro-rata

also find out the business reason for the 3 weeks in Jan.

If the holiday was allready approved and the notice to allocate 3 weeks in Jan was given just before the holiday then these should be paid as normal.

so to summerize.

find out what is going on and what they mean by pro-rata

Check the holiday allowances are correct
Check the holiday year, this may be crucial.

Pricivius

As others have said, we need more info.

If this recent holiday has been approved, then they cannot refuse to pay her holiday pay for it. However, it is likely that they can bring in a new policy and insist that holiday is taken at certain times. Historical arrangements to have certain dates off are unlikely to be contractual.

The other point to note is that this is how many companies work to ensure that they have some control over their staff's attendance. Many companies also use pro-rataing to avoid staff leaving who have taken more than their accrued holiday - it can be very difficult to recoup such sums.

If your wife would not have taken this job if she knew that she could not take holiday exactly when she wants it, which also happens to coincide with the most popular holiday dates, it's unlikely she would find another employer willing to commit to this. I would suggest she has been lucky that she has been able to do this for the last 5 years...