Holiday pay use it or lose it

sangie595

No it isn't. It's a case of the fact that holiday, regardless of what your are paid, is a legal entitlement.

And no, if you take 20 days you still aren't entitled to be paid for the rest. The entitlement is to paid holiday, not holiday pay.

I don't disagree that the employer here may have a moral obligation, but morals don't have any legal bearing, and it is not lawful for any employer to expect someone not to take holiday whatever their contact type and no matter what the pressure. If the work pressure is intense that is actually an argument fortaking leave, for the wellbeing of the employer.

sangie595

Oops that last word was supposed to be employee!

Anonysmith

Just an update, I am currently waiting on a decision by the agency to pay me. Due to the vast sum and the fact that the HR director and myself discussed the fact that due to my job and the pressures not allowing me to take time off, we had agreed that I could take the holiday money, when the company was ready to take me on to their contract, and also having just found out that they now say they didn't send a letter but it was an email (which again, I did not receive nor have they been able to give any details besides the date) only three days after I spoke to the director, it seems to me that they didn't exercise proper due diligence nor a duty of care to ensure that I was made aware of this clause, specially from the director I was talking to. It seems unfair that my holiday should be just forfeit. Even the staff there have said I should be paid it. As I had told them, had I been made aware, I would have started chipping away at the holiday to make sure I had within the last two months before the cut off point as the tax I would have had deducted would be excessive, had I taken the payments too close to the cut off point in large sums. It's not as clear cut as it seems. Even acas and my union believe that they have acted wrongly, regardless of the Use it or Lose it policy, companies now adopt. But thanks for all your input and help.

PasturesNew

If they stick to their guns, then take it. Forget about the tax situation etc etc.... you'll lose it all if you don't take it, so take it and pay the tax and "stuff 'em" - somebody will have to budge.

Wealthier bosses etc can never "see the problem". This is their problem they created, not yours. Don't own the problem ..... take the time if they force your hand. It is not your place to subsidise their lifestyles by donating your free time ad infinitum.

I know all the arguments etc etc .... but if you fell under a bus tomorrow they'd have to cope without you - and you booking the time off might make the pompous twits come to their senses and cough up the cash.

sangie595

I agree. Morally you may be correct, but regardless of what ACAS or your union say, legally you don't have a leg to stand on. The use it or lose it is law, and it is there to protect workers from unscrupulous employers and to enhance their wellbeing. Regardless of what you say are the pressures of the last year in this job, I would seriously question the employer (client), never mind the agency. There are now thousands of reports on record - employees who take no holiday are not better employees; and the health consequences of not taking leave, even from a low pressure environment, begin to have negative impacts in the very short term, and are very serious in the long term. It is plain madness to have a job that requires someone to work themselves into the ground, and have no redundancy plan for when they are on leave - because if they don't take annual leave, then toy are very likely to end up with sick leave anyway! Plus, although stress related injury claims are not commonplace, the ones that have been successful are all based on exactly these terms - no time to take time off and over committed work loads! By permitting you to be placed in a situation where there was no time to take leave, your client/ new employer has acted very irresponsibly. I hope this is not an indication as to what is to come.

Anonysmith

And as for those that suggest it's on me for not taking the holiday, I to an extent yes it is as its my right to take it, but let me explain my role to give clarity. The company due to take me on had an issue of safety with their steam system and required a boas boiler man on site for compliance, they had no site services in place and offered to give me a fair shot for a permanent position as the job never existed withing the company. For nearly a year I have been creating the job from scratch and also started training in an effluent plant to run that area also. The guy who was training me in their effluent plant left half way through my training leaving myself as the only person that could run it and with any knowledge of it. Without myself in that role the factory would suffer a lot and could not function without an operative to ensure they had full compliance and running of this part of their system along with the other site services dealing with steam, compressed air, cooling towers and many other areas. I was on my own and in the months after my conversation with the HR director I was helping the company find someone for myself to train so I could go on to my own shift and be able to transfer on to the new contract. The agency was fully aware of my position, role and responsibilities even my workload and hours, so they can't just apply ignorance to my case and say, you didn't use it so it's gone. The HR director knew, but I the employee that got me the job knew every step of the way what my situation was and my workload and inability to take holiday freely. And I'll admit, freely and openly, I willingly didn't take them to help the business and ensure they were able to function. I have also saved them over half a million year on year through my work there so I have worked my balls off to help them. Without the work I have done there, they would have had serious problems, again, also known to the agency and agreed that I could take my holiday or what was left as a lump sum. And don't get me wrong, I had taken the odd day when someone could cover an area but their own staff time, workloads and knowledge were limited. The law may be clear in clear circumstances but this is not a clear cut situation. I have carved out a career and worked my a** off to create it. Without that hard work I may not have had a job at the end of it or been able to do what I can now.

sangie595

I don't think you understand. Nobody is disagreeing with your circumstances. This is not criticism of you. But in law your position absolutely is clear cut. There are no circumstances in which it changes due to "circumstances".

Anonysmith

The thing is, the agency claims it send out notification, I never received that notification nor do I believe it was sent. They should as was agreed with the hr director, pay me for that holiday. If it was only three days from my conversation with her to the day they sent notification to remind staff to take holiday, then she should have made me aware that this was going out to staff. She knew flat out my situation and to say nothing but agree to pay me when the company took me on, then surely I should be paid. The agreement was made. Isn't that what companies can do, make changes to the way they do things to help employees out in different circumstances. Not make an agreement and then go back on it when it suites and just claim, oh it was in your contract!

sangie595

Anonysmith wrote: »

The thing is, the agency claims it send out notification, I never received that notification nor do I believe it was sent. They should as was agreed with the hr director, pay me for that holiday. If it was only three days from my conversation with her to the day they sent notification to remind staff to take holiday, then she should have made me aware that this was going out to staff. She knew flat out my situation and to say nothing but agree to pay me when the company took me on, then surely I should be paid. The agreement was made. Isn't that what companies can do, make changes to the way they do things to help employees out in different circumstances. Not make an agreement and then go back on it when it suites and just claim, oh it was in your contract!

No, it isn't what companies can do. Companies cannot change the law. Under any circumstances. And that means that they must ADHERE to the law, not do something different. In point of fact, you could technically get paid for the holiday and still pursue a case against them for not "allowing" you to have the holiday! Because those statutory holidays - the 20 absolute minimum days - are an absolute. There are no circumstances in which they can pay for them instead of having you take them. You cannot be forced to take holiday, but nor can you force them to pay for them. As I told you, you may have a moral argument, but you do not have a legal one. An employer and an employee are not permitted to make an agreement which provides for less entitlements than the law. Otherwise employers would be paying less that the living wage because people would take it; having no holiday at all, because people would take it, and so on. The law is the law. It doesn't change, and you can't negotiate it away.

getmore4less

An employer and an employee are not permitted to make an agreement which provides for less entitlements than the law.

Agreements do happen, it is vary rare HMRC actively seek out min pay avoidance most cases will come for then being advised of a potential case either by the actual employees or others, any action can correct the situation.

in cases where there is collution to pay less the employer alwaays runs the risk they will get reported even if they are relatively confident it won't be the employee/worker.

Holidays is a bigger problem if there is an agreement to get paid the money, employees will take the money and not rock the boat. enforcement then becomes a problem as it needs third party intervention to report and get action taken.

WTR regs enforcement is under the HSE but does not extend to the statutory holidays
Don't know of any other legislation, there was a proposal in 2005 to put it under HMRC min wage but did not happen then, has it since??

In the absense of statutory powers, don't think third parties can use an ET without the employee suppport, that makes holiday enforcement where the employer and employee want to cooperate unlikely.