What am I entitled to?

Undervalued

Bluebelle5 wrote: »

Yes I have had legal advice and advice from the union.

Well then you have to decide between taking the offer that is on the table or risking it by fighting, based on the professional advice you have received.

What is the maximum realistic benefit if the case goes your way?

How much do you stand to lose if it goes the other way?

And most important....

What value do you put on the stress involved particularly as you have clearly been unwell?

Bluebelle5

The offer is in return for me agreeing not to discuss matters with colleagues, not to take the legal route and signing away my legal rights on the matter. As I am ill and can do without the stress, I am making sure that I get the maximum due from the agreement.
The union has made some errors in their advice. Initially my employer tried to claim that my weekly rate of pay is my annual salary divided by 52, not the 44.4 that I am paid. I had to provide statutory evidence and case law even to the union to show this was incorrect and get the calculation changed. My employer has also told the union that my holiday pay is "rolled up" in my salary and this is why no payment is due but I don't think this is the case. I have read that this method of holiday pay is now unlawful but also that it is still in use in some cases. Term time pay and holidays seems to be difficult to understand and the info I have managed to find is sometimes conflicting.
Additionally, my employer also tried to claim that I only had 3 years service but that was from the time the school became an academy. Luckily, I had kept the tupe documents that showed my continuous service date.
The solicitor wanted to pursue the case and at least negotiate a sum of compensation for signing my rights away but I am looking to draw a line under the issue as quickly as possible. My legal advice has been free (through house insurance policy) so far but would now incurr costs to proceed. My employer also has other colleagues taking legal action.

getmore4less

Bluebelle5 wrote: »

7 years and full pay.

That means they have upped the notice to 12 weeks

The full pay would have included weeks when you would not have been working so some of the holiday entitlement will have been paid already.

When does the holiday year start.
If in line with the school year there won't be much accrued for this holiday year and there is a 1/2 term in there that you will have been paid

Then they have the fall back to change from PILON to Garden Leave and use up any accrued holiday going back to March even if they dropped the notice back to 7weeks.

They have options to avoid increasing any offer with holiday pay even if entitled to it.

Undervalued

Bluebelle5 wrote: »

The offer is in return for me agreeing not to discuss matters with colleagues, not to take the legal route and signing away my legal rights on the matter. As I am ill and can do without the stress, I am making sure that I get the maximum due from the agreement.
The union has made some errors in their advice. Initially my employer tried to claim that my weekly rate of pay is my annual salary divided by 52, not the 44.4 that I am paid. I had to provide statutory evidence and case law even to the union to show this was incorrect and get the calculation changed. My employer has also told the union that my holiday pay is "rolled up" in my salary and this is why no payment is due but I don't think this is the case. I have read that this method of holiday pay is now unlawful but also that it is still in use in some cases. Term time pay and holidays seems to be difficult to understand and the info I have managed to find is sometimes conflicting.
The solicitor wanted to pursue the case and at least negotiate a sum of compensation for signing my rights away but I am looking to draw a line under the issue as quickly as possible. My legal advice has been free (through house insurance policy) so far but would now incurr costs to proceed. My employer also has other colleagues taking legal action.

That is, in effect, a settlement agreement (used to be know as a compromise agreement).

As Sangie has said, the employer could simple go down the route of dismissing you on capability grounds (extended ill health). If they did that they would only have to pay your notice plus any untaken statutory holiday which continued to accrue during your sick leave. If you get holiday over and above statutory they may well not have to pay the extra days.

That of course would leave you free to bring a claim against them if you have the grounds and tell your side of the story to who you please.

The offer of a settlement could be for any number of reasons and the strength of your case (or otherwise) is only one factor amongst many.

If you go down the settlement route then the terms are whatever you agree. There is no "entitlement" to a certain holiday calculation or anything else. Either you and your employer can reach an acceptable bottom line or you can't - it is as simple as that. Most settlement agreements include a clause preventing either party from discussing the details or "bad mouthing" the other. Generally there is an agreed reference although if you work in education there may be special rules affecting this aspect.

Bluebelle5

Undervalued wrote: »

That is, in effect, a settlement agreement (used to be know as a compromise agreement).

As Sangie has said, the employer could simple go down the route of dismissing you on capability grounds (extended ill health). If they did that they would only have to pay your notice plus any untaken statutory holiday which continued to accrue during your sick leave. If you get holiday over and above statutory they may well not have to pay the extra days.

That of course would leave you free to bring a claim against them if you have the grounds and tell your side of the story to who you please.

The offer of a settlement could be for any number of reasons and the strength of your case (or otherwise) is only one factor amongst many.

If you go down the settlement route then the terms are whatever you agree. There is no "entitlement" to a certain holiday calculation or anything else. Either you and your employer can reach an acceptable bottom line or you can't - it is as simple as that. Most settlement agreements include a clause preventing either party from discussing the details or "bad mouthing" the other. Generally there is an agreed reference although if you work in education there may be special rules affecting this aspect.

Yes, the employer has called it a settlement agreement.
They offered the 12 weeks notice plus my redundancy entitlement equivalent. When they drafted the initial offer they used my salary divided by 52 to get the weekly rate and the date the school became an academy as my start date to calculate the redundancy. I provided them with evidence that these elements were incorrect. They also claim that my holiday pay is rolled up in my pay rate. This is the area I am finding difficult to understand and get clear advice.
The union did not notice the other mistakes so I don't have a great deal of faith in their advice.

Undervalued

Bluebelle5 wrote: »

Yes, the employer has called it a settlement agreement.
They offered the 12 weeks notice plus my redundancy entitlement equivalent. When they drafted the initial offer they used my salary divided by 52 to get the weekly rate and the date the school became an academy as my start date to calculate the redundancy. I provided them with evidence that these elements were incorrect. They also claim that my holiday pay is rolled up in my pay rate. This is the area I am finding difficult to understand and get clear advice.
The union did not notice the other mistakes so I don't have a great deal of faith in their advice.

But as I say, with a settlement this is all irrelevant. It doesn't matter what the various bits are called or what "entitlement" there would be under other circumstances. All that matters is the bottom line. Are you willing to agree to the terms, sign and walk away for the total amount offered?

Any further negotiation will depend on two things. How much they are prepared to pay for confidentiality and an easy life and, to some extent, how they see the strength of your case.

phoenix1837

Your holiday pay is indeed rolled up in to your pay rate as you have already demonstrated with your 39 weeks with 5.4 weeks holiday pay (44.4 weeks total) otherwise your weekly rate weekly rate would be worked out on the 39 weeks and the holiday pro rata.

Comms69

phoenix1837 wrote: »

Your holiday pay is indeed rolled up in to your pay rate as you have already demonstrated with your 39 weeks with 5.4 weeks holiday pay (44.4 weeks total) otherwise your weekly rate weekly rate would be worked out on the 39 weeks and the holiday pro rata.

Yes and in these circumstances it's legitimate as the OP is allowed time off and holiday pay.


It's 'unlawful' - from what I've seen online when looking at this issue - to do so for zero hours workers who would not have paid time off.

Bluebelle5

Undervalued wrote: »

But as I say, with a settlement this is all irrelevant. It doesn't matter what the various bits are called or what "entitlement" there would be under other circumstances. All that matters is the bottom line. Are you willing to agree to the terms, sign and walk away for the total amount offered?

Any further negotiation will depend on two things. How much they are prepared to pay for confidentiality and an easy life and, to some extent, how they see the strength of your case.

Thank you. I see what you are saying. This is really helpful.
They are restructuring, making redundancies and changing contracts. They are facing a number of grievances and tribunal cases. It's absolute chaos!
As I am already in ill health I don't want the stress of a drawn out legal battle, which I fear will take some time as they have so many ongoing. I shall probably accept the offer of notice and redundancy (with correct calculations) and bow out.

Undervalued

Bluebelle5 wrote: »

Thank you. I see what you are saying. This is really helpful.
They are restructuring, making redundancies and changing contracts. They are facing a number of grievances and tribunal cases. It's absolute chaos!
As I am already in ill health I don't want the stress of a drawn out legal battle, which I fear will take some time as they have so many ongoing. I shall probably accept the offer of notice and redundancy (with correct calculations) and bow out.

Quite. However long and stressful you think it will be....

Double it and then add a good bit more!!!

Based on what you have posted here I would "take the money". Yes, if you can get a little bit more without jeopardising the deal then fine but as I say the calculations and labels are irrelevant, you can only spend the bottom line.

Best of luck!