Holiday pay use it or lose it

sangie595

getmore4less wrote: »

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.

I agree, as I said previously, that HMRC would not get involved unless it was reported. And yes, people do make agreements that circumnavigate the law. That doesn't make such agreements legal. People work for less than the living wage. That doesn't make it legal, just because they agreed to. There is a statutory entitlement - every employee must have 28 days paid holiday and at least 20 days of that must be available to be taken in the year and not carried over. That isn't negotiable. Which is why I keep pointing out that this is a moral argument, not a legal one. The fact that the OP or the employer said they agreed to do something different doesn't matter, and if the employer were to refuse to carry over, they might be morally wrong, but they would be legally correct and so enforcement by the OP would fail - unless they were to claim that the employer refused them holiday, which would not be true. You have no legal right to enforce payment for holidays not taken. The only circumstances in which holiday may be paid for time not taken is at the end of a contract and applies to the amount currently due - not so-called back pay for previous leave years.

People need to be clear that this is the case. If the OP and their employer can reach an agreement on this (very bad practice) that they are both happy with, then fine - but others reading this need to be clear that the law is use it or lose it. There isn't another choice, just as there is no choice to decide you will accept lower than the living wage.

getmore4less

I will simplify my point

There is a statutory framework for enforcing min wage that anyone can use to protect the interests of workers even 3rd parties can report employers

Enforcement of statutory holidays requires a worker to go to an ET.

In some cases employment act deductions laws may apply but that is less straightforward.

sangie595

getmore4less wrote: »

I will simplify my point

There is a statutory framework for enforcing min wage that anyone can use to protect the interests of workers even 3rd parties can report employers

Enforcement of statutory holidays requires a worker to go to an ET.

In some cases employment act deductions laws may apply but that is less straightforward.

I understand your point fully. I think you are failing to see mine. If the employer refused to pay, and the employee had to go to a tribunal, the employee loses because it was their choice to not take the holiday. A tribunal will only find for an employee whose holidays have been denied by the employer. Not for one who chose to not take them.

Anonysmith

Well, just to inform you guys, I found in my emails that I had asked for a copy of my contract back in April so I also argued the case that had I received the copy of my contract then I would have read it and acted upon it. Not sure how much influence that had in their decision but they have today agreed to pay me in full what is owed. All I can advise people is to keep every correspondence between yourselves and employers. I think for the most part I was lucky and normally I'm pretty clued up on my contract, but no worries, I'm getting paid so I'm not complaining. Thanks for the input and advice guys!