Ex employer refusing to pay holidays owed

wilykit

Hi everyone, I will try and keep this as short as I can.

I worked for a company for just over 7 months and in this time didn't take any holidays.

The company closed for THREE weeks for refurbishment and in that time the employer decided to pay us £100 each to see us through.

After the refurbishment he allowed one of the old managers (who had previously walked out) to return. She cut all our hours to give herself more and told us to "get another job" if we had a problem. I was upset as I had managed that place unofficially when the owner had to go away not long after I had started and I had sorted rotas, worked 6 or 7 days a week just to make sure the business carried on running.

Around a month after she had started, the new manager kept cutting my hours until one day she text me and told me not to bother returning at all.

I called ACAS and I was told I was not covered for unfair dismissal as I had worked there for less than 2 years. I was told however, that if my employer refused to pay me any money owe I COULD do something about it.

I received my week's notice money no problem.

However I have been in touch with ACAS again and I am owed around £434.74 holiday pay.

My employer claims that he only owes me £125 as he paid us £100 when HE chose to close.

Surely this is not right? A holiday is time for me to take when I chose, not for my employer to decide?

ACAS has informed me I can take him to a tribunal over this. Would this cost me anything?

Any help is appreciated - thank you for reading!

Zoe x

AP007

Did you have a zero hours contract?

No you employer can tell you when to take holiday but did they tell you this in writing that it was holiday?

wilykit

Nope, he used to say we don't get holiday pay because we got tips.

It was not agreed or even mentioned that it was a holiday.

AP007

wilykit wrote: »

Nope, he used to say we don't get holiday pay because we got tips.

It was not agreed or even mentioned that it was a holiday.

It's a bar or restaurant?

What about a contract? Got one? how many hours did you work a week? What were the contracted hours?

wilykit

It was a cafe which then turned into a cafe bar.

Apparently he hasn't spoken to his accountant (like he claimed) and he knows he owes me and is just trying to fob me off?

We never had a contract, nothing was discussed - he did it all dodgy

AP007

Write to the boss and send REGISTERED POST

Detail the amount they owe you and say you have been advised you are owed this amount.

Give them 7 working days to send the money to you or tell them you are going to seek further advise if you do not get it.

zzzLazyDaisy

Please be aware that at the moment it is free to make a tribunal claim, but from 29th July it will cost you £160 to make the claim for unlawful deduction from wages and a further £230 to proceed to a hearing. There are exemptions available but I suggest that you try and avoid this if you can by getting your claim in before 29th July.


You need to write to them saying something like this:

Dear [name of ex-employer]

Despite requests I have still not received the outstanding holiday owed to me. I am therefore now writing formally to put you on notice that I require full payment in the sum of [insert money owed] by way of cleared funds into my bank account [insert bank sort code and account number] by 4pm on [insert date 14 days after posting] failing which I will commence proceedings in the employment tribunal for unlawful deduction from wages. No further notice will be given.

Yours sincerely

Wilykit

If you don't get the full amount of money owed, make the tribunal claim. You can do it on-line. You don't need to get into lots of detail, just that the employer terminated your employment on [date] and despite requests including a formal letter before action dated [date] has failed to pay you [insert number of days] holiday pay due to you which you calculate as amounting to £434.74

keyser666

Just out of interest LazyDaisy are these recoverable like a MCOL if found in your favour and awarded??

anamenottaken

wilykit wrote: »

However I have been in touch with ACAS again and I am owed around £434.74 holiday pay.

Do you know how that £434.74 has been calculated?
Do you want to check the calculation?

Because you say you don't have any written particulars of your employment as should have been provided by your employer, then by default:
(a) you will have accrued ("earned") holiday at a rate equivalent to the statutory (therefore minimum) entitlement
(b) your holiday year started on the first day of your employment .

Regarding (a) - calculate 12.07% of the hours you worked and multiply by the average rate of pay for the last 12 weeks (or simply your hourly rate if it never changed).

Have I missed the date you actually left? I see you worked there for about 7 months but not the date you ended your time there.

AP007

The OP said the employer has admitted to owing technically £425 but as they had paid them £100 x 3 for the 3 weeks when they were closed they are saying they only now owe the OP £125

The claim here is that the £100 (x3) was not holiday pay therefore all the holiday pay has not been paid

zzzLazyDaisy

keyser666 wrote: »

Just out of interest LazyDaisy are these recoverable like a MCOL if found in your favour and awarded??

The tribunal judge has a discretion to include the costs of bringing the case to tribunal, in the compensation award, and it is expected that they will exercise their discretion in most cases. Which is not quite the same thing as MCOL, where the successful claimant is entitled to claim the court costs from the defendant.

If cases are settled through ACAS prior to the hearing, it will be for the parties to include the tribunal fees as part of the negotiations.

As a by-the-by, there was an interim hearing for judicial review of tribunal fees in Scotland today, and the full hearing has been expedited to take place next week. Unison is also in the process of launching a judicial review in England/Wales but AFAIK there's no date set for that yet.