Can employer deduct holiday pay from final salary?

sxp842

Hi

Just looking for some advice. I’ve handed my notice in and I’m on a 3 month notice period, due to leave 4th April. My employer has said that I’ve taken too much holiday and some money will be deducted from my final pay cheque. (I’ve taken 10 days out of 15 days so far). Can they do this? I read somewhere that an employer can only do this if it’s agreed in writing, but I can’t see anything about this in my contract.

I get 20 days holiday, plus bank holiday, plus the office is closed between xmas and New Years. This gave me a total of 30 days holiday this year inc bank holidays.

I started the job on 4 sept 2017 and my last day will 4 April 2018. I accrue holiday on a monthly basis, and our holiday year runs 1 June to 31 May.

Also, I handed in my notice during my probation period. My contract states that during probation they can give me a week’s notice, but it is silent about how much notice I can give during probation. After probation the notice period for both parties is 3 months. My work have therefore said, because I gave notice during my probation, the notice period is 3 months. However, they have also said that this might be shortened if they find a replacement for me sooner. But they said it in such a way that made it sound like they would just tell me when I should go, it seemed like I don’t get any say in when I go.

In this situation, technically what are my rights with my notice period?

Thanks

mr_munchem

Have a read of your contract, often over use of holidays and paying this back is often covered in there. Without an agreement in writing, or a legal obligation, your employer cannot do this

hcb42

if you have taken more holidays than you have accrued then no you will not be paid for them. That is reasonable

getmore4less

Statutory holidays for the accrual on termination accrue from day one to the end of employment

Statutory monthly accrual during first years or contractual accrual is something different and must not be less than statutory accrual.

Work period 4 Sept to 4 April (assume Mon-Fri)

That is 30.6 weeks or 7 months prorata statutory is 16.42 or 16.33 using those 2 methods so the contractual accrued needs to be around that or more.

Based on 30.6weeks it would be 17.65/17.5

You will have used 5 BH and 3 shutdown days so how much or the rest have you used?

Give the shutdown needs 3 day on top of the 2 BH but they only give two extra how is the contract written for those days it may be you have only used 1 from the 28 day not 3 from 30 prorata.

ie. if 1 from 28 you have used 6 of the 16.xx and not 8 from the 17.xx

Have a good read of the contract(VERY carefully) for notice period if they have messed up and not put a notice period in for the probation AND explicitly say that the notice after probation is 3 months then during probation that would be statutory notice of 1 weeks

Given they have explicitly said after probation both notice is equal both sides 3 months reasonable to concur the t the intention was to be equal during probation.

Once you establish that you can play along with the 3 months and when you get a job/want to leave adjust it to one week.

Get whatever they say in writing if they say you are on 3 months then they have to pay that even if they want you to leave sooner(Garden leave or PILON) do not agree to leave early unless you need to.


On the pay back overused holiday the legislation is in the WTR 14.4
http://www.legislation.gov.uk/uksi/1998/1833/regulation/14/made

(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.

sxp842

Thanks for the replies everyone.

So my employer can not deduct my holiday pay unless my contract explicitly states? I can’t see it mentioned anywhere in my contract, but I might ask my employer to point out the relevant clause to me.

With my notice period, my employer has already stated in an email that my notice period is 3 months, but this might be reduced as they already have someone in mind for the role. Given that they have said this in writing, would I be entitled to ask for pay in lieu of notice if they asked me to leave earlier?

I don’t want to be difficult with them, but I don’t feel like they are being very straight with me.

paddedjohn

If you have been over paid (which you will have if you have taken too many holidays) then your employer is entitled to take that money back.

sxp842

Sorry, also forgot to say - re holiday taken, I have taken 12 days annual leave, 3 shut down, 3 bank holiday = 18 days total.

My contract doesn’t specifically state that the 3 month notice period starts after the probation period. There is just a probation clause for new starters, and then a seperate clause about new starters. My 3 month probation got extended by a further 3 months so I am still within my probation period (it ends on 1st March, but my 3 month notice period ends on 1st April). I have set out the relevant clauses below:

"PROBATIONARY PERIOD (NEW STARTERS ONLY)" \f C \l "1"
Your employment is subject to a probationary period during which your suitability will be assessed. Your employment will be subject to review after three months. During this period, and until we confirm that your probationary period has been completed, we may terminate your employment on not less than one week’s notice. If at the end of your probationary period we are satisfied with your progress it will be confirmed to you in writing that you will become a permanent employee. If we are not satisfied then we may continue your probationary period for up to a further six months.

TERMINATION OF EMPLOYMENT" \f C \l "1"
22.1 Either party shall be entitled to determine this contract by giving the following minimum written period of notice:-
22.1.1 three months' notice ​
22.2 We reserve the right to pay net basic salary, i.e. after PAYE deductions, in lieu of notice.

sxp842

I’m a bit confused about people who are saying that I have to pay back and extra holiday I have taken because the government website says the following :

If a worker has taken more leave than they’re entitled to, their employer must not take money from their final pay unless it’s been agreed beforehand in writing. The rules in this situation should be outlined in the employment contract, company handbook or intranet site.

My contract is silent about this, but I need to check the office manual. Assuming it is also silent, then given the above, how is deduction of holiday pay justified?

I’m not saying it isn’t justified, I just don’t understand the legal basis behind it given what the government website says.

Thanks

getmore4less

The WTR say they can't take money from your wages or have you work for nothing unless there is a contractual arrangement to do that.

If those that think otherwise can point to the relevant legislation that allows it it would be useful for the OP and others that need to update their understanding of the current laws on this.

sangie595

This is a "cake and eat it" situation. You want not to have three months notice (the contract as quoted is clear, your notice is three months); you want to be let go earlier but paid for the whole three months; and you don't want to pay back holiday that you owe. So here's how it works in reality. They can dismiss you with a weeks notice, so yes, they can counter your resignation by dismissing you with a weeks notice and no, you won't be paid for the rest of the three months. Unless there is something in writing they shouldn't deduct from final salary - but they probably will. That would leave you with only the option of suing them - and I'd expect them to them counter sue you, and that will be the end of that!

Unequal notice periods are commonplace, and there is nothing in law that says they can't operate this system.

Your rights are very few, and I'd suggest that trying a "rights" approach is more likely to end up rebounding on you. Especially if you ever need a reference from them. It can be surprising how things can come back to bite you, even years later, that you didn't expect. Compromise and negotiation are a better route - particularly when you have very little on your side!

MH1927

It looks like they cannot remove the pay from your wages.

However, they are entitled to utilise the Small Claims Court to recover the overpayment.

If its a small amount they may not bother, but if they do and win they will likely be allowed to add the fess.