Company refuse to pay for unused annual leave days

Undervalued

Rudess wrote: »

At no point I was told to use my annual leave days, not in writing and not verbally. My termination letter makes no mention of this either.

I would be very surprised if somewhere in your employee handbook or company policies and procedures, it does not say that it is normally expected that employee's will use up annual leave during their notice period unless agreed otherwise.

It is common practice and they could possibly be relying on this in their refusal to pay. It is a close call. I would expect if you make a claim somebody in the company will "remember" telling you so! As I said earlier, it will come down to who the judge believes - if it gets that far.

However, with a friend who is an employment law solicitor, would it not be better to take their advice first hand?

Rudess

Undervalued wrote: »

I would be very surprised if somewhere in your employee handbook or company policies and procedures, it does not say that it is normally expected that employee's will use up annual leave during their notice period unless agreed otherwise.

It is common practice and they could possibly be relying on this in their refusal to pay. It is a close call. I would expect if you make a claim somebody in the company will "remember" telling you so! As I said earlier, it will come down to who the judge believes - if it gets that far.

However, with a friend who is an employment law solicitor, would it not be better to take their advice first hand?

It's a very small company and doesn't have handbook. There is clause in contract that says that they can require you to take annual leave during notice, but that they have to give you notice of this requirement.



In my case that they didn't give such notice neither verbally nor in writing in the termination letter. Only when I contacted them to demand these annual days to be paid they started to say that the CEO 'told' me to take it when he gave me the termination letter. They clearly lie as CEO never told me anything, and if he did, why isn't it in writing in termination letter?


They clearly didn't think about it and now look at excuses not to pay. Seems like Small Claims could be a good way forward. I can prove to the court that I contacted them first by email and then by phone to resolve this. When they refuse to pay, the last resort is going to court.

Masomnia

If you left having not taken statutory annual leave that you had accrued I would be flabbergasted if you didn't win it. They can require you to take it, but if they didn't then that's their fault. If they 'asked' you but you didn't take it they still owe you.

Undervalued

Rudess wrote: »

It's a very small company and doesn't have handbook. There is clause in contract that says that they can require you to take annual leave during notice, but that they have to give you notice of this requirement.



In my case that they didn't give such notice neither verbally nor in writing in the termination letter. Only when I contacted them to demand these annual days to be paid they started to say that the CEO 'told' me to take it when he gave me the termination letter. They clearly lie as CEO never told me anything, and if he did, why isn't it in writing in termination letter?


They clearly didn't think about it and now look at excuses not to pay. Seems like Small Claims could be a good way forward. I can prove to the court that I contacted them first by email and then by phone to resolve this. When they refuse to pay, the last resort is going to court.

That is rather as I expected!

There is no specific requirement for it to be in the termination letter. The clause in your contract may be helpful and it would be worth double checking the exact wording.

Also relevant, if this gets to court, is any evidence that suggests you were so busy it would have been difficult for the firm to have managed without you during the notice period. Realistically it is unlikely any of the staff will give evidence to back you up against the word of the CEO. Whilst their are some honourable people most will put their job security ahead of your holiday pay I'm afraid.

Assuming you are not bothered about a reference from this firm then there is little to be lost by sending a letter before action and if necessary issuing proceedings. If you go down the small claims court route you will have to pay a fee up front. If you win this will be added to what they are ordered to pay.

Alternatively you can make a claim in the Employment Tribunal, which is free, and will trigger ACAS pre claim procedures which may be sufficient.

Sadly though, if it goes the distance, it will be a close call.

Rudess

Undervalued wrote: »

That is rather as I expected!

The clause in your contract may be helpful and it would be worth double checking the exact wording.

This is the wording: 'The Company reserves the right to require you to take holidays on particular dates including during any notice period or garden leave. You will be given reasonable notice of any such requirement'.



The clause that protects me is: 'On termination of employment for any reason except any reason justifying summary termination, you will be entitled to pay in lieu of accrued but untaken holiday. The amount of any payment in lieu will be calculated on the basis of 1/260 of Basic Salary per day'.

Undervalued

Rudess wrote: »

This is the wording: 'The Company reserves the right to require you to take holidays on particular dates including during any notice period or garden leave. You will be given reasonable notice of any such requirement'.



The clause that protects me is: 'On termination of employment for any reason except any reason justifying summary termination, you will be entitled to pay in lieu of accrued but untaken holiday. The amount of any payment in lieu will be calculated on the basis of 1/260 of Basic Salary per day'.

Maybe but not as much as you think (in my opinion).

1st paragraph. They are currently saying they did. You are saying they didn't. Nothing says it has to be in writing.

2nd paragraph. This is legally nonsense! Even if they sack somebody without notice for gross misconduct they cannot refuse to pay for any untaken statutory holiday. No contract term and overwrite this. They may be able to lawfully withhold any entitlement over and above the statutory 28 days.

Your situation is different. They are arguing that they told you to use up you holiday and you failed to do so. You say otherwise. As I have said several times it comes down to who the judge believes on the balance of probabilities.

In all probability if you issue proceedings they will either pay in full or offer some kind of settlement.

Rudess

Undervalued wrote: »

Maybe but not as much as you think (in my opinion).

1st paragraph. They are currently saying they did. You are saying they didn't. Nothing says it has to be in writing.

2nd paragraph. This is legally nonsense! Even if they sack somebody without notice for gross misconduct they cannot refuse to pay for any untaken statutory holiday. No contract term and overwrite this. They may be able to lawfully withhold any entitlement over and above the statutory 28 days.

Your situation is different. They are arguing that they told you to use up you holiday and you failed to do so. You say otherwise. As I have said several times it comes down to who the judge believes on the balance of probabilities.

In all probability if you issue proceedings they will either pay in full or offer some kind of settlement.

Do you think settlement is more likely if going through employment tribunal , where you have first the mediation part?

Undervalued

Rudess wrote: »

Do you think settlement is more likely if going through employment tribunal , where you have first the mediation part?

Possibly yes but see if anybody else responds with a view on this. If nothing else it would avoid risking the County Court fee.

Rudess

Happy to update everyone that 3 months after going through tribunal and then ACAS, I have reached a settlement with the employer. Although I received half of the amount claim, I guess it's a win as it's better than nothing. Thanks for everyone who responded here previously!

Undervalued

Rudess wrote: »

Happy to update everyone that 3 months after going through tribunal and then ACAS, I have reached a settlement with the employer. Although I received half of the amount claim, I guess it's a win as it's better than nothing. Thanks for everyone who responded here previously!

Which is more or less what I predicted some months ago!

This was always going to be a close call so I think you were wise to meet halfway.