Holiday pay use it or lose it

Anonysmith

I have been working through an agency for a company for a little under a year and due to the nature of my job and it having never existed within the company, I have had to out a lot of work into creating the job. This has had a negative impact on my ability to take holiday pay due to the nature of the job. I found out that the agency had incorrectly calculated my holiday pot value based on my overtime and challenged this with the HRC director back on April the 28th, this case I was successful in being granted the correct amount for the 10 days I had saved up valued at over £2000. I had explained to the HR director that due to my job at the company, I was unable to the take holiday and she had explained that I could have it as a lump sum when I left to fully join the company. I had said that I wasn't sure when the transfer was to take place but she said that it would be fine and they would have to pay it in weekly lump sums due to their system. Nothing more was said until just yesterday when the company im working under asked me to hand in my notice to go on a permanent contract. I contacted my agency to inform them and asked how many holidays I had saved now and they said I had 0.3 days. I was shocked and asked why, to which they said it reset on the 30th of June! They said they had sent a letter to all staff saying they needed to take their leave but couldn't tell me when it was sent, nor have I received any notification. I found it strange that they would send a letter as every piece of correspondence including payslips has been via email. Surely they can't just deny me this. The HR director should have at least advised me to take it due to the holiday pot being so large and being only 2 months away from the cut off and the fact that I have been working 5 days a week at 10hours plus and being pretty much on call? I was also told it was in my contract but I read that nearly a year ago and having been so busy creating a career from scratch, my mind hasn't really been on what my contract stipulates. Surely there's some duty for the employer to make more of an effort to contact me, specially the way I always have been via email, and specially due to the vast size of my holiday pot that, the company I'm transferring to, has paid their money into? Frustrated doesn't even begin to describe how I'm feeling right now. Any help would be greatly appreciated.

anamenottaken

Anonysmith wrote: »

I have been working through an agency for a company for a little under a year and due to the nature of my job and it having never existed within the company, I have had to out a lot of work into creating the job. This has had a negative impact on my ability to take holiday pay due to the nature of the job. I found out that the agency had incorrectly calculated my holiday pot value based on my overtime and challenged this with the HRC director back on April the 28th, this case I was successful in being granted the correct amount for the 10 days I had saved up valued at over £2000. I had explained to the HR director that due to my job at the company, I was unable to the take holiday and she had explained that I could have it as a lump sum when I left to fully join the company. I had said that I wasn't sure when the transfer was to take place but she said that it would be fine and they would have to pay it in weekly lump sums due to their system. Nothing more was said until just yesterday when the company im working under asked me to hand in my notice to go on a permanent contract. I contacted my agency to inform them and asked how many holidays I had saved now and they said I had 0.3 days. I was shocked and asked why, to which they said it reset on the 30th of June! They said they had sent a letter to all staff saying they needed to take their leave but couldn't tell me when it was sent, nor have I received any notification. I found it strange that they would send a letter as every piece of correspondence including payslips has been via email. Surely they can't just deny me this. The HR director should have at least advised me to take it due to the holiday pot being so large and being only 2 months away from the cut off and the fact that I have been working 5 days a week at 10hours plus and being pretty much on call? I was also told it was in my contract but I read that nearly a year ago and having been so busy creating a career from scratch, my mind hasn't really been on what my contract stipulates. Surely there's some duty for the employer to make more of an effort to contact me, specially the way I always have been via email, and specially due to the vast size of my holiday pot that, the company I'm transferring to, has paid their money into? Frustrated doesn't even begin to describe how I'm feeling right now. Any help would be greatly appreciated.

It's the paid holiday that you have to use (not holiday pay) or lose it.

Now look at your contract with the agency. Does it state when the holiday year is? If it says it ends on 30 June then you should have taken all accrued holiday by then - or resigned in order to get paid. If it doesn't give a date then your holiday year runs from the day you first worked for the agency. Was it just under a year ago or did you work for a different client company before the current one?

If you left you should receive a single lump sum for holiday accrued but not taken. There is no reason why they should pay it in weekly amounts. If you were actually taking the time off and being paid then they would have to pay it weekly but on termination it should be the total amount. Is it a small agency which makes up the rules as it goes along? I guess it is if you have been in contact with the HR Director.

TELLIT01

It's entirely possible that I'm wrong, but I was under the impression that if somebody simply chose not to use their holiday 'use it or lose it' was permissable. Telling somebody they can't take their holiday entitlement and then refusing to pay for the unused holiday is not.

anamenottaken

TELLIT01 wrote: »

It's entirely possible that I'm wrong, but I was under the impression that if somebody simply chose not to use their holiday 'use it or lose it' was permissable. Telling somebody they can't take their holiday entitlement and then refusing to pay for the unused holiday is not.

Agreed. But (or do I mean "And"?) we don't have evidence that any specific holiday was requested.

System

TELLIT01 wrote: »

It's entirely possible that I'm wrong, but I was under the impression that if somebody simply chose not to use their holiday 'use it or lose it' was permissable. Telling somebody they can't take their holiday entitlement and then refusing to pay for the unused holiday is not.

we have to use our holiday before april otherwise we lose it and it wont be paid

sangie595

TELLIT01 wrote: »

It's entirely possible that I'm wrong, but I was under the impression that if somebody simply chose not to use their holiday 'use it or lose it' was permissable. Telling somebody they can't take their holiday entitlement and then refusing to pay for the unused holiday is not.

Yes, you are wrong!

In relation to statutory holiday (for anything above that those days can be treated as the employer wants) it is "use it or lose it" - payment for untaken time is only a right when someone is leaving their employment within the holiday year and have accrued more leave that they have taken AND the employer doesn't require it to be taken before they leave. They may be allowed to carry some over a holiday year (a maximum of 8 days from the 28 days statutory entitlement); and that right should be set down in their contract.

The reason that the law is written in this way is to ensure that workers are not coerced into giving up holiday time - nobody should work for a year and "not have time to take holiday". If that is true, then either the employer/client, or the person, are not very good at planning the work. Holiday is a right and a requirement - people need time away from work for their health and wellbeing.

martinthebandit

TELLIT01 wrote: »

It's entirely possible that I'm wrong, but I was under the impression that if somebody simply chose not to use their holiday 'use it or lose it' was permissable. Telling somebody they can't take their holiday entitlement and then refusing to pay for the unused holiday is not.

..... and I was under the impression that if an employee gets less than the statutory paid holiday per year then HMRC get very interested and even more so if the employee is on minimum wage

sangie595

martinthebandit wrote: »

..... and I was under the impression that if an employee gets less than the statutory paid holiday per year then HMRC get very interested and even more so if the employee is on minimum wage

Not necessarily. HMRC will only find out if it is reported, and they only care about circumstances where people are refused their entitlement to leave. As has already been pointed out, there is no evidence here that happened. It appears to be more a case of the employee not taking (asking for) leave, and where that happens that is on the employee. They have a right to take leave, but the employer has no obligation to make them do so. Not does the employer have any obligation to tell the employee to take leave.

The way in which the OP discusses this suggests that they were under the false impression that holidays are a savings scheme, with a pot of money that you can dip into if you want to take a break from work. That isn't the case. There is no "pot " - only holiday.

TELLIT01

sangie595 wrote: »

The reason that the law is written in this way is to ensure that workers are not coerced into giving up holiday time - nobody should work for a year and "not have time to take holiday". If that is true, then either the employer/client, or the person, are not very good at planning the work. Holiday is a right and a requirement - people need time away from work for their health and wellbeing.

I agree on all points above. There was no way I wouldn't take all my holiday entitlement. To clarify though - if somebody has the correct statutory holiday entitlement but doesn't take it (no coercion by management) should they be paid extra for the remaining days? i.e. 28 day entitlement, only took 20, should they be paid and extra 8 days pay?
Personally, I believe that the employer should insist on people taking the legal minimum, but do know that doesn't always happen.

andygb

Sometimes, when you are working on a contract, the work pressure is very intense, and the employer will expect you not to take any leave.
I have been in this situation many times in the past, when employed through agencies and when on fixed term contracts employed by companies.
The simple fact is, that the company want you there every day without taking time off.
I feel for the OP here, and I think that they should be paid for the holiday which has not been taken.

martinthebandit

sangie595 wrote: »

Not necessarily. HMRC will only find out if it is reported, and they only care about circumstances where people are refused their entitlement to leave. As has already been pointed out, there is no evidence here that happened. It appears to be more a case of the employee not taking (asking for) leave, and where that happens that is on the employee. They have a right to take leave, but the employer has no obligation to make them do so. Not does the employer have any obligation to tell the employee to take leave.

.

I think it's more of the case that if an employee doesn't take paid holidays it can drop them below minimum wage.