Holiday Pay Disputed After Notice

sangie595

I think you have compeletely failed to understand how this works. Yes you may be able to issue a claim for unlawful deductions - may. When you do, if you owe the money, you will be counterclaimed by the employer for the money you owe. As Undervalued already pointed out, you are powerless to prevent such a deduction, so they CAN take it from your wahe, and if you owe the money legal action on your part will simply result in that counterclaim. So, as I said, the OP is completely free to make a legal claim that they cannot win.

breakinthesun

Try reading the judgment first. It will help, I promise

Excess holiday (I say authorised because we get into a bit of a quagmire on unauthorised holiday that's been paid) is not treated as "wages" for the purpose of the exceptions to the unlawful deductions provision in the Employment Rights Act. Also, just to be pedantic, an unlawful deductions claim in the tribunal is statutory and not contractual, so a tribunal would not have jurisdiction to hear a counterclaim even if one could be brought (which it can't in this instance, hence the pedantry!).

I offered a PM simply because I have the judgment to hand and I can't upload PDFs to posts. Can you link me to older discussions with Phil/Belinda? I'm curious about whether they experienced the same thing I currently am when pointing out the erroneous advice that gets given on here.

getmore4less

a commentory in the Hill case(plenty of other concur)

In the Hill case, the EAT acknowledged that section 14(1) of the 1996 Act does indeed authorise the deduction of any overpayment of wages or salary from a worker's pay packet without the worker's prior consent. However, Miss Hill's excess holiday pay was not an 'overpayment', said the EAT. She had applied for, and been granted, three weeks' holidays. She was legally entitled to be paid for those holidays when she took them. However, her employers had neglected to include a term in her contract authorising them to recover any overpaid holiday pay should she resign or be dismissed. That had been their undoing.

sangie595

I am pointing out one last time, that the question is not whether the employer can legally deduct or not, which is something we do not know. But the employer can deduct anything that they want, and it is then up to the employee to mount a case against if. If said employee owes the money then the employer will simply counter claim against them, and the employee still owes them the money - and with a court judgement to that effect.

The issue therefore remains whether the employee owes the money in the first place, because if they do entering the legal arena is of no benefit to them at all, and simply adds to their situation.

I would also point out that this is all made so much easier for the employer by the fact that this judgement was before fees for employment tribunals were introduced. So the only reasonable cost for such a claim is through the county court, where counter claims are possible. They are not in employment tribunals, but, of course, you pay a lot more for that type of claim.

You see, as those of us who live and work in the real world know, reading a judgement is one thing. Knowing what happens if you take action without thinking is another. I am perfectly content to keep everything I say on the site, and in fact I do not accept PMs. If I make a mistake I will say so, and I have done before now. Everyone makes mistakes. But my advice is not a mistake. If you owe the money it must be paid back. Your employer can deduct it - there is absolutely nothing you can do to stop them. After that event you may be able to bring a claim, but they will simply bring a counter claim. And you will still owe the money!

So no amount of angels dancing on pinheads will get you around one simple fact - the critical point is, as I said, if you owe them money then you must pay it back. If you wish to follow advice that tells you to launch legal action based on their advice, and risk losing that action, then you are free to do so.

getmore4less

The key part of the ruling is that under working time regs(14.4) you don't owe the money unless the employer has terms in the contract.

(4) A relevant agreement may provide that, where the proportion of leave taken by the worker exceeds the proportion of the leave year which has expired, he shall compensate his employer, whether by a payment, by undertaking additional work or otherwise.

As with any deduction you need to convince the employer that it is wrong to deduct by pointing them at any thing that supports your point of view or get a court to get them to pay if they do deduct.

Undervalued

getmore4less wrote: »

The key part of the ruling is that under working time regs(14.4) you don't owe the money unless the employer has terms in the contract.



As with any deduction you need to convince the employer that it is wrong to deduct by pointing them at any thing that supports your point of view or get a court to get them to pay if they do deduct.

If you go back to the opening post you will see that the OP says...

I've checked my contract and it states that they can take any money owed out of my final pay

It seems to me that there is a clear argument that any holiday taken before sufficient days have been accrued is money owed.

getmore4less

Undervalued wrote: »

It seems to me that there is a clear argument that any holiday taken before sufficient days have been accrued is money owed.

That is not what the working time regulations says(14.4) and backed up by an EAT ruling.

The point is that is is not money owed UNLESS the contract specifically covers holiday taken over the prorata for the year.

A blanket "any money owed" is not sufficient as that just clarifies the employment act 14.1 covering money owed at termination.

Undervalued

getmore4less wrote: »

That is not what the working time regulations says(14.4) and backed up by an EAT ruling.

The point is that is is not money owed UNLESS the contract specifically covers holiday taken over the prorata for the year.

A blanket "any money owed" is not sufficient as that just clarifies the employment act 14.1 covering money owed at termination.

Well we don't know exactly what the contract says, the OP has only paraphrased it briefly. She would need proper advice from somebody that can examine the precise wording of her contract and related documents.

If she has taken holiday in excess of what was accrued and they deduct if from her final pay she would have to risk the fees involved in bringing a claim. Before doing that I would suggest she gets some proper advice, certainly not via a PM from an unknown anonymous poster on this forum!

breakinthesun

Directly from the judgment (it's on Westlaw for those of you with a subscription):

The position
(1) the Appellant was entitled to 20 days holiday per annum (Regulation 13(1)). She
took, by agreement with the Respondent, 15 days holiday during the 6 month period the
commencement and termination of her employment. She was paid for that leave in accordance
with regulation 16(1).

The Judgment
(5) In our judgment the position is as follows. The Appellant was entitled to and did
receive wages for the 15 days holiday taken during her employment. Credit for the extra 5 days
holiday pay will only arise where there is express provision made in a relevant agreement. In those
circumstances an exception is made under section 13(1) ERA; the deduction of excess holiday pay
from his/her final wage entitlement is authorised by a relevant provision of the workers contract
and/or he has previously signified in writing his agreement or consent (by the relevant agreement)
to the making of the deduction. Section 14(1) ERA is immaterial whether or not there is a relevant
agreement. There is no “overpayment” of holiday pay. The worker is entitled to paid holiday, up
to 20 days per annum, under regulation 16(1). It is only where there is a relevant agreement
providing for credit to be given to the employer for excess holiday taken that regulation 14(4)
permits the employer to recover the excess payment in accordance with section 13(1) ERA.

getmore4less

That PM was just a offer to point at the ruling, a 30 sec google&read the links finds the relevant information.

it would appear some including yourself thought that taking more holidays was an automatic overpayment recoverable under the employment act contrary to the working time regs(which cover holidays) and the EAT ruling.


It is probably the case that too many just accept the paying back of overpaid holidays where the employer has no right to that money because they failed to put the relevant clauses in the contract.

recovering any deduction for any reason is always going to be a problem for an employee, same for the employer when they can't retain enough to cover what they believe they are owed.

The employer in this case is clearly not that familiar with the law and pointing them at the EAT ruling may be enough to get them to back off if there are no clauses in the contract covering the taking of more holidays than have accrued prorata.